Skip to main content

Full text of "The doctrine of equity a commentary on the law as administered by the Court of chancery"

See other formats


yn 




UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 




SCHOOL OF LAW 
LBBIARY 



Class 



Book No. 



ngtoD, 1). C. \ I 






, thdrawti 



f. 



w 



riiis book may be kept 

FOURTEEN DAYS 

from last date stamped below. A fine of TWO CENTS 
will be charged for each day the book is kept over 






Digitized by tine Internet Archive 

in 2007 witin funding from 

IVIicrosoft Corporation 



littp://www.arcliive.org/details/doctrineofequityOOadamiala 



THE 



DOCTRINE OF EQUITY. 



COMMENTARY 0^ THE LAW 



AS ADMINISTERED BY 



€\t Court of Clanterg. 

BY 

JOHN ADAMS, Jun., Esq., 

BARRISTER AT LAW. 



CONTAINING THE NOTES TO THE PREVIOUS EDITIONS OF 

J. R. LUDLOW, J. M. COLLINS, HENRY WHARTON AND 
GEO. TUCKER BISPHAM. 



ADDITIONAL NOTES AND REFERENCES TO RECENT ENGLISH AND 
AMERICAN DECISIONS, 

BY 

GEORGE SHARSWOOD, Jr. 



PHILADELPHIA: 
T. & J. W. JOHNSON & CO., 

LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, 
535 CHESTNUT STREET. 



T 
\^13 



Entered, according to Act of Congress, in the year 1S73, 

BY T. & J. W. JOHNSON A CO., 

In the OflSce of the Librarian of Congress, at Washington. 



Entered, according to Act of Congress, in the year 1868, 

BY T. i J. W. JOHNSON & CO., 

In the Clerk's OflSce of the District Court for the Eastern District of Pennsylvania. 






HENRT B. ASBHEAD, PRINTIR, 

Nos. 1102 and IlOt Sansom Street, Philadelphia. 



^5'1'!>*^ iAthdrawn 



PREFACE 

TO THE SIXTH AMERICAN EDITION. 



*3 



With the concurrence and approval of the former ed- 
itors, their notes and references have been combined, and 
those of the present editor added to them. Their arrange- 
ment of notes has been followed, and the present work, 
has, as far as possible, been confined to references to the 
recent American and English cases. 

George Sharswood, Jr. 

Philadklphia, January, 1873. 



PREFACE 

TO THE THIRD AMERICAN EDITION. 



The task of the present editor has been, in the main, 
that of supplying notes and references which should 
embody the more important English and American de- 
cisions, upon the topics of which this work treats, since 
the publication of the last edition. He has, in some in- 
stances, however, enlarged and added to his predecessors' 
notes, though leaving them in general to stand as they 
were written. 

The editor would willingly have made the annotations 
to the last division of this work, on Pleading and Prac- 
tice, more systematic and complete than they are ; but he 
found, that in view of the great changes which time and 
altered circumstances have introduced into the course of 
Chancery procedure, both in England and the United 
States, it would not have been possible to do so without 
adding greatly to the bulk of the book, with no corre- 
sponding advantage to the reader. In this country, in- 
deed, between those States in which the distinct equitable 
jurisdiction is abolished, and those in which the frame- 
work of the Court of Chancery still stands, there is to be 
found a wide range of diversities, chiefly of local origin, 
and irreducible to any common system ; while in none, it 
is believed, is the older practice, as set forth in the text 
of this work, in all respects followed. Every State looks 
in such matters chiefly to its own statutory and judicial 
regulations ; and these it would not have been appropriate 



PREFACE. T 

or convenient to embody in the notes to so elementary a 
work, as the present. 

In England, the alterations which the last few years 
have produced, are of the most remarkable character ; 
so that, indeed, the whole structure of Chancery must 
be considered as remodelled. In the first place, the 
pleadings have been simplified to an extreme degree. 
An informal claim is substituted in many cases for a 
bill; and disputed questions under wills, deeds, con- 
tracts, and the like, may be submitted directly to the 
Court in the form of a case stated. The bill, when used, 
is only a concise printed narrative of the material parts 
of the complainant's case, with the prayer for the appro- 
priate relief at the end ; for the interrogatories are now 
filed separately. The answer is substituted in every 
respect for the old modes of defence ; and is a concise 
statement of the respondent's case, whether in bar or 
avoidance : and he is, in his turn, authorized, if he choose, 
to exhibit interrogatories to the complainant, and to 
compel the production of documents, without recourse to 
a cross-bill. Exceptions for impertinence on either side 
are done away with, the only penalty thereon being the 
costs, if any be occasioned. Objections for the non- 
joinder or misjoinder of parties, where not abolished 
altogether, are made as Kttle productive of injury and 
delay as possible. Bills of revivor and supplement no 
longer exist; their place being supplied by a greater 
latitude of amendment, and by the power to make cor- 
responding orders in the cause. The clumsy system of 
the examination of witnesses on interrogatories is abol- 
ished; and testimony is now taken orally, before the 
examiner, in the presence of the parties, as in suits at 
law, while objections to the competency of witnesses are 



VI PREFACE, 

no longer allowed. That fons mahrum, the office of 
Master, is done away, and its duties are transferred to 
the Court at chambers, assisted by clerks. The Court 
now settles all questions of law, and even a disputed legal 
title, itself, without directing an actien or a case to a 
Court of law, A new tribunal, called the Court of Ap- 
peal, with co-ordinate appellate jurisdiction to the Chan- 
cellor, has been created. And finally, very judicious 
means for the reduction of the expenses of Chancery 
proceedings have been adopted, the principal one of which 
is the substitution of compensation by salaries to the 
officers of the Court, in lieu of the old fee system. Other 
ameliorations and improvements are in progress ; and be- 
fore long the English Chancery, once the stronghold of 
abuses and delay, will be made one of the simplest, most 
effective, and cheapest tribunals in the world. Even 
now, the radical, though well-regulated, reforms in this 
and other branches of the law, in England, patiently 
effected in the face of a thousand obstacles, present a 
marked contrast to the slow progress made in this direc- 
tion by most of the United States. It is to be hoped, 
indeed, that the subject will soon be taken up by the 
profession throughout the whole of our country, with 
energy and earnestness, so that we may no longer deserve 
the reproach of being left behind in the race of real im- 
provement by one of the most conservative of nations. 

The references throughout the book have been care- 
fully corrected, and an alphabetical table of all the Re- 
ports and Text-books cited in them, has been prefixed, 
which will furnish an explanation of the abbreviations 
employed. 

Henry Wharton. 

Philadelphia, April, 1855. 



ADVERTISEMENT. 



In preparing this treatise for the press, the chief design 
of its lamented author was to present to the profession a 
comprehensive and condensed view of the general Princi- 
ples of the Doctrine of Equity, as administered in the 
Court of Chancery, and an outline of the proceedings hy 
which those principles are enforced. It comprises the 
substance, with additions, of three series of Lectures, de- 
livered before the Incorporated Law Society, in the years 
1842—5. The completion of the work in its present form 
occupied from that period a considerable portion of the 
time and labor of the author; and, with the exception of 
the last four chapters of the fourth book, the treatise had 
received his final corrections, and arrangements were 
making for its immediate publication, when he was so sud- 
denly called away in the autumn of last year. 

The thanks of the author's friends are due to Mr. James 
Willis, of the Equity Bar, for his valuable assistance in 
the coiTection of the unfinished chapters of the treatise, 
and in the general revision of the work during its progress 
through the press. 

J. A. 

Michaelmas Term, 1849. 



CONTENTS. 



THE PAGES REFERRED TO ARE THOSE BETWKKS BRACKETS [ ]. 

BOOK I. 

OP THE JURISDICTION OP COURTS OP EQUITY AS REGARDS THEIR 
POWER OP ENPORCING DISCOVERY. 

CHAPTER I. 

Of Discovery . . . . . . .1 

CHAPTER II. 

Of Commissions to examine Witnesses abroad . . . 23 

Of Perpetuation of Testimony . . . . .24 

Of Examinations de bene esse ..... 25 

' BOOK II. 

OP THE JURISDICTION OP THE COURTS OP EQUITY IN CASES IN WHICH 
THE COURTS OF ORDINARY JURISDICTION CANNOT ENPORCE A RIGHT. 

CHAPTER I. 
Of Trusts, both Ordinary and Charitable . . .26 

CHAPTER II. 

Of Specific Performance ..... 77 

Of Election ....... 92 

Of Imperfect Consideration ..... 97 

Of Discharge by Matter in pais of Contracts under Seal , . 106 



CONTENTS. 



CHAPTER III. 



Of Mortgages. 
Perfect 
Imperfect 



Of Conversion 
Of Priorities 
Of Tacking . 



CHAPTER IV. 



CHAPTER V. 

Of Re-execution .... 

Of Correction 

Of Rescission and Cancellation . 

CHAPTER VI. 

Of Injunction against Proceedings at Law 

Of Bills of Peace 

Of Bills of Interpleader 

Of Injunction against Tort 



110 
122 



135 
145 
163 



167 
169 
174 



194 
199 
202 

207 



BOOK III. 

OF THE JURISDICTION OP THE COURTS OF EQUITY IN CASES IN WHICH 
THE COURTS OF ORDINARY JURISDICTION CANNOT ADMINISTER A 
RIGHT. 



CHAPTER I. 



Of Account 



220 



CHAPTER II. 



Of Partition 

Of Assignment of Dower 



229 
233 



CONTENTS. XI 

Of Subtraction of Tithes. . . . . .235 

Of Ascertainment of Boundary .... 237 

CHAPTER III. 

Of Partnership . . . . . . .239 

CHAPTER IV. 

Of Administration of Testamentary Assets . . . 249 

CHAPTER V. 

Of Contribution and Exoneration . . , 267 

Of Marshalling . . . . . . 271 

CHAPTER VI. 

Of Infancy ... , , . 278 

Of Idiocy and Lunacy . , . , , . 290 



BOOK IV. 

OP THE FORMS OF PLEADING AND PROCEDURE BY WHICH THE JURIS- 
DICTION OF THE COURTS OP EQUITY IS EXERCISED. 

CHAPTER I. 
Of the Bill 299 

CHAPTER II. 
Of Parties 312 

CHAPTER III. 
Of Process and Appearance ..... 32-t 



Xn CONTENTS. 

CHAPTER IV. 
Of the Defence .....". 331 

CHAPTER V. 
Of Interlocutory Orders ...... 348 

CHAPTER VI. 
Of Eyideneex ...... 363 

CHAPTER VII. 
Of the Hearing and Decree ..... 374 

CHAPTER VIII. 
Of the Rehearing and Appeal .... 396 

CHAPTER IX. 

Of the Cross-Bill 402 

Of the Bill of ReviTor ..... 404 

Of the Bill of Supplement . . . . .408 

Of the Bill to Execute or Impeach a Decree . . 415 



TABLE OF TEXT-BOOKS AND REPORTS. 

CITED IN THIS VOLUME, 



Abbott's R. (U. S. G. C). 

Adams on Ejectment. 

Adolphus and Ellis R. (England). 

Alabama Reports. 

Allen's R. (Massachusetts). 

Ambler's R. (England). 

American Law Journal, New Series. 

American Law Register. 

American Law Register, (New Series) . 

American Leading Cases (Hare and 

Wallace). 
Arkansas Reports. 
Ashmead's R. (Pennsylvania). 
Atkyn's R. (England). 

Bail Court Cases (England). 

Bailey's Equity R. (South Carolina). 

Baldwin's R. (Circuit Court, U. S.). 

Barbour's Chancery R. (New York). 

Barbour's Supreme Court R. (New 
York). 

Barnewall and Alderson's R. (Eng- 
land). 

Barnewall and Cresswell R. (Eng- 
land). 

Barr's R. (Pennsylvania). 

Bay's R. (South Carolina). 

Beames on Costs in Equity. 

Beasley's R. (New Jersey). 

Beatty's R. (Ireland). 

Beavan's R. (England). 

Bennett's R. (Missouri). 

Bibb's R. (Kentucky). 

Bingham's New Cases (England). 

Bingham's R. (England). 

Binney's R. (Pennsylvania). 

Blackstone's (Wm.) R. (England). 

Bland's Chancery R. (Maryland). 

Black's R. (Sup. Ct. U. S.). 

Blackford's R. (Indiana). 

Blatchford's R. (Circuit Ct. U. S.). 

Bligh's R. (England). 

Bligh's R. New Series (England). 

B. Monroe's R. (Kentucky). 

Bosanquet and Puller's R. (England). 



Bradford's Surrogate R. (New York). 

Brewster's R. (Pa.). 

Brightly's Nisi Prius R. (Pennsyl- 
vania). 

Brockenbrough's R. (Circuit Ct. U. S.). 

Browne's Chancery Cases (England). 

Browne's Parliamentary Cases by 
Tomlins (England). 

Burrill on Assignments for the Benefit 
of Creditors. 

Burrough's R. (England). 

Burr's Trial (U. S.). 

Busbee's Eq. R. (North Carolina). 

Caines's Cases in Error (New York). 

Calendar of Chancery Proceedings. 

California Reports. 

Call's R. (Virginia). 

Cameron and Norwood's R. (North 
Carolina). 

Carolina Law Repository (North Caro- 
lina). 

Carter's R. (Indiana). 

Chambers on Infancy. 

Chancery's Cases (England). 

Chandler's R. (Wisconsin). 

Charlton (R. M.) R. (Georgia). 

Cheves's R. (South Carolina). 

Clark and Finnelly's R. (England). 

Clarke's R. (New York). 

Coke upon Littleton. 

Coke's Institutes. 

Collyer's R. (England). 

Common Bench R. (England). 

Comstock's R. (New York). 

Connecticut Reports. 

Conner and Lawson's R. (Ireland). 

Cooke's R. (Tennessee). 

Cooper's Chancery Cases (England). 

Cooper's R. (England). 

Cooper's (C. P.) R. (England). 

Cowen's R. (New York). 

Cowper's R. (England) 

Cox's Chancery Cases (England). 

Cox's Chancery Rep. (England). 



XIV 



TEXT-BOOKS AND REPORTS, 



Craig and Phillips' R. (England). 
Oranch's R. (Sup. Ct. U. S.). 
Oroke's R. (Elizabeth, James I., 

Charles I.). 
Curtis' R. (Circuit Ct. U. S.). 
Cushing's R. (Massachusetts). . 
Cushman's R. (Mississippi) 

Dallas's R. (Pennsylvania). 

Dana's R. (Kentucky). 

Daniell's Chancery Practice. 

Day's R. (Connecticut). 

De Gex and Jones' R. (England). 

De Gex, Fisher and Jones' R. (Eng- 
land). 

De Gex, Jones and Smith's R. (Eng- 
land). 

De Gex and Smale's R. (England). 

De Gex, Macnaghten and Gordon's R. 
(England). 

Dessaussure's R. (South Carolina). 

Devereux's Eq. R. (North Carolina). 

Devereux and Battle's Equity R. 
(North Carolina). 

Dickin's R. (England). 

Dillon's R. (C. C. of U. S.) 

Douglass's R. (Michigan). 

Dow's R. (England). 

Drewry's R. (England). 

Drewry and Smale's R. (England). 

Drury's R. (Ireland). 

Drury and Warren's R. (Ireland). 

Dudley's R. (Georgia). 

Duer's R. (New York). 

East's R. (England). 

Eden's R. (England). 

Edwards' Chancery R. (New York). 

Edmonds' Select Cases (New York). 

Elmer's New Jersey Digest. 

English's R. (Arkansas). 

English Common Law Reports. 

Equity Draftsman. 

Equity R. (England). 

Equity Cases Abridged (England). 

Exchequer R. (England). 

Fairfield's R.- (Maine). 

Finch's R. (England). 

Florida Reports. 

Foster's R. (New Hampshire). 

Freeman's Chancery R. (Mississippi). 

Freeman's R. (England). 

Gallison's R. (Circuit Ct. U. S.). 
Georgia Decisions. 
Georgia Reports. 
GiflFard's R. (England). 
Gilbert on Uses, by Sugden. 
QUI and Johnson's R. (Maryland). 



Gill's R. (Maryland). 

Gilman's R. (Illinois). 

Glyn and Jamison's R. (England). 

Grattan's R. (Virginia). 

Gray's R. (Massachusetts). 

Green's Chancery R. (New Jersey). 

Greene's R. (Iowa). 

Greenleaf s Cruise's Digest. 

Greenleaf on Evidence. 

Greenleafs R. (Maine). 

Hale's Jurisdiction &f the House of 

Lords. 
Hale's Pleas of the Crown. 
Hall and Twell's R. (England). 
Halstead's Chancery R. (New Jersey). 
Hammond's R. (Ohio). 
Hardin's R. (Kentucky). 
Hare's R. (England). 
Hargrare's Coke upon Littleton. 
Harper's Equity R. (South Carolina). 
Harper's Law R. (South Carolina). 
Harrington's Chancery R. (Michigan). 
Harrington's R. (Delaware). 
Harris and Gill's R. (Maryland). 
Harris and Johnson's R. (Maryland). 
Harris and M'Henry's R. (Maryland). 
Harrison's R. (New Jersey). 
Hawk's R. (North Carolina). 
Haywood's R. (North Carolina). 
Head's R. (Tennessee). 
Hemming and Miller's R. (England). 
Hempstead's R. (Circuit Court U. S.). 
Henning and Munford (Virginia). 
Heyward's R. (Tennessee). 
Hill's Equitv R. (South Carolina). 
Hill's R. (New York). 
Hill and Denio's R. (New York). 
Hill's Law R. (South Carolina). 
Hill on Trustees. 
Hoffman's Chancery Practice. 
Hoffman's Chancery R. (New York). 
Hopkins' R. (New York). 
House of Lords' Cases (England). 
Howard's R. (Mississippi). 
Howard's R. (Supreme Court U. S.). 
Humphreys' R. (Tennessee). 

Illinois Reports. 

Indiana Reports. 

Institutes, see Coke. 

Iowa Reports. 

Irish Chancery R. 

Iredell's Equity R. (North Carolina). 

Irish Equity Reports. 

Irish Law and Equity R. (New Series). 

Jacob's R. (England). 

Jacob and Walker's R. (England). 

Jarman's Bythewood's Conveyancing. 



TEXT-BOOKS AND REPORTS. 



XV 



Jarman on Wills. 
Jarman's Powell on Devises. 
Johnson's Reports (England). 
Johnson andHemming'sR. (England). 
Johnson's Chancery R. (New York). 
Jones's Equity R. (North Carolina). 
Jones and Latouche's R. (Ireland). 
Jurist (England). 

Kansas Reports. 

Kay and Johnson's R. (England). 

Keen's R. (England). 

Kelly's R. (Georgia). 

Kent's Commentaries on American 
Law. 

Kernan's R. (New York). 

Knapp's Privy Council Cases (Eng- 
land). 

Lansing's R. (N. Y.). 

Law Journal R. New Series, Chancery 
(England). 

Law Review (England). 

Law Reports, Chancery Appeals (Eng- 
land). 

Law Reports, Common Pleas (Eng- 
land). 

Law Reports, Equity (England). 

Leading Cases in Equity, White and 
Tudor, American ed. by Hare and 
Wallace. 

Leigh's R. (Virginia). 

Lewin on Trusts. 

Littell's R. (Kentucky). 

Littell's Select Cases, or 6 Litt. (Ken- 
tucky). 

Lloyd and Goold's R. (Ireland). 

Louisiana Annual R. 

McCarter's Reports (New Jersey). 

McCord's Chancery R. (South Caro- 
lina). 

McCord's LawR. (South Carolina). 

McLean's R. (Circuit Court U. S.). 

McMulIen's Chancery R. (South Caro- 
lina). 

Macnaghten and Gordon's R. (Eng- 
land). 

Macqueen's Practice. 

Macqueen's Scottish Appeal Cases 
(England). 

Maddock and Geldart (England). 

Maddock's Chancery Practice. 

Haddock's R. (England). 

Maine Reports. 

Manning's R. (Michigan). 

Manning and Granger's R. (England). 

Marshall's (A. K.) R. (Kentucky). 

Marshall's (J. J.) R. (Kentucky). 

Martin and Yerger's R. (Tennessee). 



Maryland Chancery Decisions. 

Maryland Reports. 

Mason's R. (Circuit Court U. S.). 

Maule and Selwyn's R. (England). 

Meeson and Welsby's R. (England). 

Meigs' R. (Tennessee). 

Merlvale's R. (England). 

Metcalf s R. (Massachusetts). 

Metcalfe R. (Kentucky). 

Michigan Reports. 

Minnesota Reports. 

Mississippi Reports. 

Missouri Reports. 

Mitford's Chancery Pleadings. 

Molloy's R. (Ireland). 

Monroe's R. (Kentucky). 

Monroe's (Ben.) R. (Kentucky). 

Montague and Ayrton's Bankruptcy 
R. (England). 

Montague, Deacon and De Gex^s R. 
(England). 

Moore's Privy Council Cases (Eng- 
land). 

Mumford's R. (Virginia). 

Murphey's R. (North Carolina). 

Mylne and Craig's R. (England). 

Mylne and Keene's R. (England). 

Nevada State Reports. ~ 

New Chancery Cases, see Young and 

CoUyer. 
New Hampshire Reports. 
New York Reports. 
North Carolina Term Reports, 

Ohio Reports. 

Ohio State Reports, New Series. 

Paige's R. (New York). 

Paine's R. (Circuit Court U. S.). 

Parsons on Partnership. 

Parsons' Equity Gases (Pennsyl- 
vania). 

Patton and Heath's R. (Virginia). 

Peck's R. (Tennessee). 

Peere Williams' R. (England). 

Pennsylvania Law Journal. 

Pennsylvania Reports. 

Pennsylvania State Reports. 

Penrose and Watts' R. (Pennsylvania.) 

Peters' Circuit Court R. (U. S.). 

Peters' R. (Supreme Court U. S.). 

Phillipps on Evidence 

Phillips' R. (England). 

Pickering's R. (Massachusetts). 

Porter's R. (Alabama). 

Precedents in Chancery (England). 

Purdon's Digest (Pennsylvania Stat- 
utes). 

Queen's Bench R. (England). 



XVI 



TEXT-BOOKS AND REPORTS. 



Railway Cases (England). 
Randolph's R. (Virginia). 
Rawle's R. (Pennsylvania). 
Reports, Coke's (England). 
Rhode Island Reports. 
Rice's Equity R. (South Carolina). 
Richardson's Equity R. (South Caro- 
lina). 
Riley's Equity R. (South Carolina). 
Robinson's R. (Virginia) 
Root's R. (Connecticut). . 
Roper, Husband and Wife, by Jacob. 
Rotuli Parliamentorum. 
Russell's R. (England). 
Russell and Mylne's R. (England), 

Sanford's Chancery R. (New Yrok). 

Sanford's Superior Ct. R. (New York). 

Saxton's Chancery R. (New Jersey). 

Scammon's R. (Illinois). 

Schoales and Lefroy's R. (Ireland). 

Scott's New Reports (England). 

Selden's R. (New York). 

Select Chancery Cases (England). 

Selwyn's Nisi Prius. 

Sergeant and Rawle's R. (Pennsyl- 
nia). 

Seton on Decrees. 

Shepley's R. (Maine). 

Shower's Parliamentary Cases (Eng- 
land). 

Siderfin's R. (England). 

Simons' R. (England). 

Simons' R., New Series (England). 

Simons and Stuart's R. (England). 

Smale and GifiFard's R. (England). 

Smedes and Marshall's Chancery R. 
(Mississippi). 

Smedes and Marshall's R. (Mississippi). 

Smith's Chancery Practice. 

Smith's Leading Cases, by Hare and 
Wallace. 

Smith's Mercantile Law. 

Sneed's R. (Tennessee). 

South Carolina Reports. 

Speer's Equity R. (South Carolina). 

Stephen's Blackstone's Commentaries. 

Stephen on Pleading. 

Stewart's R. (Alabama). 

Stewart and Porter's R. (Alabama). 

Stockton's R. (New Jersey). 

Story on Equity Jurisprudence. 

Story on Equity Pleading. 

Story on Partnership. 

Story'b R. (Circuit Court U. S.). y 

Strange's R. (England), 

Strobhart's Equity R. (South Caro- 
lina). 

Strobhart's Law R. (South Carolina). 

Sugden on Powers. 



. Sugden on the Law of Property as 
' administered in the House of Lords . 

Sugden on Vendors and Purchasers. 

Sumner's R. (Circuit Court U. S.). 

Swan's R. (Tennessee). 

Swanston's R. (England). 

Tamlyn's R. (England). 

Tennessee Reports (Overton). 

Term Reports (England). 

Texas Reports. 

Turner's R. (England). 

Turner and Russell's R. (England). 

Tyrwhitt's Bxch. R. (England). 

Vermont Reports. 
Vernon's R. (England). 
Viner's Abridgment. 
Virginia Revised Code. 
Vesey Senior's R. (England). 
Vesey Junior's R. (England). 
Vesey and Beames' R. (England). 

Walker's Chancery R. (Michigan). 

Walker's R. (Mississippi). 

Wallace's R. (Sup. Ct. U. S.). 

Wallace Jr.'s R. (Circuit Ct. U. S.). 

Washington's Circuit Court R. (U. S.) 

Washington's R. (Virginia). 

Watts' R. (Pennsylvania). 

Watts and Sergeant's R. (Pennsylva- 
nia). 

Wendell's R. (New York). 

West Virginia Reports. 

Wharton's R. (Pennsj'lvania). 

Wharton's Digest of Pennsylvania R. 

Wharton's R. (Sup. Ct. U. S.). 

White on Supplement. 

Wigram on Discovery. 

Wigram on Wills. 

William Blackstone's R. (England). 

Williams on Executors. 

Williams on Real Property. 

Williams on Personal Property. 

Williams' R. (Vermont). 

Wisconsin Reports. 

Woodbury and Minot's R. (Circuit Ct. 
U.S.). 

Wright's R. (Ohio). 

Yeates' R. (Pennsylvania). 

Yerger's R. (Tennessee), 

Younge's R. (England). 

Younge and Collyer, Exchequer R. 

(England). 
Younge and Collyer's New Chancery 

Cases (England). 

Zabriskie's R. (New Jersey). 



TABLE OF ENGLISH CASES. 



THE PAGES KEFEREED TO ARB THOSE BETWEEN BRACKETS [ ]. 







PAGE 






PACE 


Aberdeen Ry. Co. v. 


Blaikie 


Appleby 


V. Duke, 


391 


Brothers, 


, 


. 183 


Archer t 


. Hale, .... 


107 


Abernethj v. Hutchinson, 


. 213 


Arkwright, Ex parte, 


161 


Ackroyd v. Smithson, 




33, 138 


Armstro 


Qg V. Armstrong, . 


377 


Acton V. Woodgate, , 




. 31 


Arundel 


V. Phipps, . 


151 


Adair v. New River Co. 




. 321 


Ash V. R 


ogle, . . . . 


65 


Adams v. Glaxton, 




165, 386 


Ashby V 


Ashbv, 


142 


V. Dowding, . 




. 413 


Ashburton r. Ashburton, . 


285 


V. Fisher, 




. 17 


Ashhurs 


t V. Mill, 


189 


Adderlej' v. Dixon, 




83 


Aston V. 


Heron, 


199 


Agar V. Fairfax, 


230 


, 231, 234 


AtkinsoE 


V. Gray, 


252 


V. Regent's Canal Co. 


. 212 




V. Henshaw, 


353 


Agassiz V. Squire, 




. 185 


Att.-Gen 


. V. Andrew, 


72 


Ahearne v. Hogan, . 




. 184 




V. Arnold, 


71 


Aldborough v. Trye, . 




. 186 




V. Aspinwall, - . 


67 


Alden i'. Gregory, 




. 176 




V. Bristol, Mayor of, . 


71 


Aldrich v. Cooper. 








V. Butcher, 


400 


257, 263 


270 


272, 275 




V. Caius College, 61, 69 


Aldridge v. Harper, . 




. 107 




V. Clack, . 


39 


Aleyn v. Bekhier, 




. 186 




V. Clarendon, Earl of, 


75 


Alexander v. Crosbie, 




. 171 




V. Cleaver, 


211 


Allen V. Macpherson, 




248, 249 




V. Compton, 


67 


Allfrey r. Allfrey, . 




. 343 




V. Cooper's Company, 


71 


Allison V. Herring, . 




. 221 




V. Corp. of London, 




Ambrose v. Dunmow Union, 


. 199 




9, 14, 15, 17 


Ames I'. Parkinson, . 




56, 63 




V. Cradock, 


310 


Amphlett v. Parke, . 




. 139 




V. Dixie, 


75 


Ancaster v. Mayer, . 




. 265 




w. Draper's Co. . 68, 69, 71 


Ancaster, Duke of, v. Mayer, 


261, 263 




V. Dublin, Mayor of, 67, 75 


Anderson v. Wallis, 




. 302 




V. East Retford, 


11 


V. Guichard, 




. 355 




V. Exeter, Mayor of, . 


68 


V. Noble, . 




. 196 




V. Fishmongers' Co. . 


414 


Anderton v, Yates, 


, 


. 287 




V. Flint, 


69 


Andrews v. Lockwood, 


. 


. 406 




V. Foord, . 


74 


V. Partington, 




. 287 




V. Forbes, . .211, 


212 


V. Walton, 




. 397 




V. Foster, . . 411, 


412 


Angel V. Smith, 


. 


. 353 




V. Foundling Hospital, 


75 


Angell V. Angell, 


. 


. 24 




V. Goldsmiths' Co. 


310 


V. Davies, 




. 400 




V. Green, . 


72 


Anon. V. Walker, 


. 


56 




V. Grocers' Co. . 


77 


Anonymous, 




. 283 




V. Heelis, . 


321 


Ansdell v. Ansdell, . 


218, 


357, 375 




V. Ironmongers' Co. . 


73 


Ansley v. Bainbridge, 


. 


. 105 




V. Jackson, . 84, 


238 


Antrobus v. Davidson, 




, 270 




V. Lambe, . 


17 


V. Smith, . 


. 


. 100 




V. Leeds, Duke of, 37, 


115 


Apperly r. Page, 




241, 322 




V. Liverpool, Mayor of, 


61 



xvm 



TABLE OF ENGLISH CASES. 



Att.-Gen. v. Lubbock, 


. 75 


Ballard v. White, 


. 386, 


387 


V. Lucas 


4 


Balmain v. Shore, 




245 


V. Manchester and Leeds 


Balmanno v. Lumley, 




380 


Railway Compa 


ay, 218 


Bamford v. Bamford, 




390 


V. Mangles, 


. 136 


Hampton v. Birchall, 


. 408, 


413 


V. Merchant Tailors' Co. 310 


Bannatyne v. Leader, 


. 


15 


V. Mullay, . 


. 290 


Barfield v. Kelley, 


. 


413 


V. Newark, Corporation 


Bariatinski, Re, 




290 


of, . 


. 74 


Baring v. Nash, 


, 


230 


V. Nicholl, 


. 211 


Barker v. Wardle, 




261 


V. Pargeter, 


. 74 


Barnard v. Wallis, 


. 196 


359 


V. Pearson, 


. 373 


Barned v. Laing, 




360 


V. Poole, Corporat 


ion 


Barnes v. Racster, 




274 


of, . . 


67, 310 


V. Grant, 




31 


V. Pretyman, 


. 68 


Barnett v. Weston, . 




163 


V. Ray, 


. 25 


Barnesdalet;. Lowe, . 




35 


V. Sands, . 


51 


Barrett v. 'i'ickel. 




356 


t7. Severne, 


290, 372 


Bartlett v. Bartlett, . 




351 


V. Sheffield Gas C 


on- 


V. Gillard, . 




21 


Burners' Co. 


. 211 


Bartley v. Bartley, 




16 


V. Shore, . 


61 


Barry v. Wrey, . 




115 


V. Shrewsbury, . 


. 67 


Bartle v. Wilkins, 




115 


V. Sitwell, 


. 172 


Basset v. Nosworthy, 


149, 151 


162 


V. Skinners' Company, 71 


Bastard v. Clarke, 


. 


413 


V. Smythies,. 


71,75 


Bate V. Bate, 


. 


18 


V. Southgate, 


. 265 


Bateman v. Willoe, . 




197 


V. Todd, . 


. 73 


Bath, Earl of, v. Sherwin, 


202 


V. Wansay, 


. 72 


Batty V. Chester, 




175 


V. Whitchurch, . 


. 71 


Bayley v. Leominster, 


Corpora- 




V. Wilkins, 


69, 162 


tion of, . 


, 


89 


V. Wilson, . 71, 


268, 319 


Beadle v. Burch, 




176 


Attwood V. Banks, 


. 198 


Beach v. Keep, . 




80 


V. Small, 176, 177, 


189, 321 


Bear v. Smith, . 


. 


262 


Austen v. Hasley, 


. 289 


Beatson v. Beatson, . 


. 


80 


V. Taylor, 


. 42 


Beattie v. Johnston, . 




316 


V. Boyes, 


. 246 


Beauchamp v. Huntley 


Marquis 




Aveling v. Knipe, 


35 


of, . . . . 


. 


260 


Averall v. Wade, 


270, 273 


Beaumont v. Braraley, 


. 170 


175 


Aylett V. Ashton, 


46, 91 


V. Meredith, 
Beavan v. Gilbert, 


. 242 


321 
385 


Bacon v. Jones, 


218, 357 


V. Carpenter, 


. 


25 


V. Spottiswoode, 


. 219 


Beckford v. Wade, 




63 


Badcock, Re, 


. 297 


Belcher v. Varden, • 




111 


Bailey v. Richardson, 


. 112 


Belchier v. Butler, 


. 


162 


V. Taylor, 


. 219 


Belfast, Earl of, v. Chichester, . 


24 


V. Weston, 


195, 359 


Bell V. Cureton, 


31 


302 


Bainbrigge v. Blair, 61, 353, 


355,410 


V. Dunmore, 




347 


Bainford v. Bainford, 


. 390 


V. Phyn, 


. 


246 


Baggett V. Meux, 


44, 45 


V. Whitehead, 




215 


Baglehole v. Walters, 


. 179 


Bellamy v. Sabine, . 


.' 157 


175 


Baker v. Harris, 


. 164 


Bellwood V. Wetherell, 




9 


V. Hart, . 


. 377 


Benan v. Rufford, 


, , 


212 


V, Bradley, 


45, 184 


Benbow v. Townsend, 


, , 


28 


Balfe V. Lord, . 


. 126 


Bennett v. CoUey, 




55 


Balfour v. Welland, . 


. 156 


Ex parte, 


, , 


61 


Ball V. Ball, 


. 283 


V. Ingoldsby, 


, 


167 


V. Coutts, . 


288, 289 


V. Smith, 




77 


V, Harris, . 


. 255 


Benson v. Baldwin, . 




238 


V. Mannin, 


. 183 


Bent V. Young, . 


, , 


19 


V. Montgomery, 


. 49 


Bentley v. Bates, 


. 


247 



TABLE OF ENGLISH CASES. 



XIX 



Bentinck v. Willink, 




196, 359 


Benyon v. Nettlefield, 






3, 20 


Beresford v. Archbishop 


of. 


Ir- 




magh, . 




. 


46 


Beresford v. Driver, . 






12, 14 


Berkeley v. Rider, 




. 


347 


Berkhampstead Free School, 


Ex 




parte. 






75 


Bernal v. Donegal, 






361 


Bernard v. Drought, . 






160 


Berney v. Sewell, 




122, 353 


Besch V. Frolick, 






243 


Betts V. Menzies, 






6 


Biddulph's and Poole's Trusts, Rs 


, 290 


Biederman v. Seymour, 






262 


Bignold V. Audland, . 




205, 206 


V. Springfield, 






39!) 


Bilbie v. Lumley, 






189 


Bill V. Cureton, 




31,302 


Binns v. Parr, . 






351 


Birkett v. Hibbert, . 






288 


Birkley v. Presgrave, 






271 


Birley v. Chorlton, . 






212 


Birmingham v. Kirwan, 






94 


Bishop V. Church, 






172 


B. J., Re, . 






292 


Blachford v. Christian, 






183 


V. Kirkpatrick, . 




87 


Blackburn v. Stables, 






42 


V. Staniland, 






414 


V. Warwick, 






112 


Blacket v. Lamb, 


. 




94 


Blackeney t;. Dufaur, 


. 




243 


Blackie v. Clarke, 


. 




177 


Blacklows V. Law, 






45 


Blain v. Agar, . 






317 


Blair v. Bromley, 


173, 


174, 177 


Re, . . . 


. 




29'r 


Blake v. White, 






107 


Blakemore v. Glamorgan Cana! 




Company, 


211 


212, 218 


Bland v. Winter, 






319 


Blandy v. Widmore, . 


. 




105 


Blaydes v. Calvert, . 






360 


Blenkinsopp v. Blenkinsopp, 




180 


Bligh V. Brent, . 






245 


Bloffeld V. Payne 






217 


Blomfield v. Eyre, 






281 


Blount I'. Hipkins, 






265 


Blundell v. Gladstone, 






199 


V. Winsor, . 






242 


Blunden v. Desart, . 






164 


Boehm v. Wood, 


354 


36 


0, 361 


Bolton V. Liverpool, Corporatior 




of, ... 






. 15 


Bond, Ex parte, 






. 288 


V. Hopkins, 






. 228 


V. Kent, . 






. 128 


Booth p. Booth, 






. 59 


V. Creswicke, . 




4C 


0,408 



Bootle ». Blundell, . 250,377,378 
Bor V. Bor, .... 95 

Borell V. Dann, . . 79, 159 

Boschetti v. Power, . . . 351 
Bostock V. North Stafford R. R., 211 
Boughton V. James, . . . 265 
V. Boughton, . . 263 
Boultbee v. Stubbs . . .107 
Boulter v. Boulter . . .198 
Bouverie v. Prentice, . . 238 

Bower v. Cooper, ... 79 
Bowes V. Feme, ... 15 

Bowles «. Orr . . . . 221 
V. Weeks, ... 39 
Boys V. Ancell, . . .108 

Boyse v. Colclough, . . 249 

V. Rossborough, . . 249 
Bozon V. Farlow, ... 82 
Bradbury v. Manchester, &c., R. 

R., 218 

Brace v. Blick, . . . .373 
V. Marlborough, Duchess 



of, 

V. Whenert, 
Braddick v. Thompson, 
Bramwell v. Halcomb, 
Brandon v. Brandon, 
V. Robinson, 
Braybrooke v. Meredith, 
Breadalbane v. Chandos, 
Brealey v. Collins, 
Breeze v. English, 
Brenan i'. Preston, 
Brice v. Stokes, 
Bridge, Re, 

V. Bridge, 
Bridges v. Stephens, 
Bridget v. Hames, 



162 



164 

83 

193 

215 

391 

42 

54 

170 

84 

382 

233 

58, 62 

293 

80 

209 

317 



59, 



Bridgewater, Duke of, v. Edwards, 238 

Briggs V. Penny, 

Bright V. Hutton, 

Bristed v. Wilkins, 

Bristow V. Warde, 

Broadhurst v. Balguy, 

Brocklehurst v. Jessop, 

Brodie v. Barry, 

Bromfield, Ex parte, . 

Bromley v. Smith, 

Brooke t;. Hereford, Lord 

V. Greathed, . 

Lord V. Rounthwaite, 



Brookfield v. Bradley, 
Brookes t*. Burt, 
Brooks V. Stuart, 
Broom v. Broom, 
Broome v. Monck, 
Browell v. Read, 
Brown r. Bamford, 
V. Blount, 
tj. Carter, 



29, 31 

239 

133 

93 

382 

. ' 125 

. 93 

. 143 

. 321 

230, 232 

122, 353 

. 91 

121, 285 

. 315 

107, 319 

. 245 

. 141 

. 3.53 

. 45 

323 

46 



XX 



TABLE OF ENGLISH CASES. 



Brown v. Cole, . 






. 110 


V. Higgs, 
V. Lake, . 




. 30, 396 
. 262 


V. Lee, . 






268 


V. Lockhart . 






115 


V. Tapscott, . 
V. De Tastett, 




- 


240 
, 249 


V. Weatherby, 
Browne, Re, 






173 

280 


Bruce, Ex parte, 
Bruin v. Knott, . 


. 125 
287, 288, 375 



Brunswick, Duke of, v. Hanover, 

King of, . . . .314 

Brunswick v. Cambridge, . 11,. 344 
Buckland V. Pocknell, . . 128 
Buckle V. Mitchell, . . 146, 153 
Buckley v. Barber, . . . 246 
Buckworth v. Buckworth, . 287 

Bugdeu V. Bignold, . . . 273 
Bullock V. Wheatley . . 56 

Bulwer V. Astley, . . 111,270 
Bunburyv. Banbury, . 7, 198 

w. Winter, . . .112 
Bunn, Ex parte, • . . 370 

Burbridge, Re, . . . . 297 
Burch ?;. Coney, . . . 334 

Burges, Re 292 

Burgess v. Burgess, . . .217 

V. Wheate,37, 50, 51, 113,115 

Buries v. Popplewell, . . 260 

Burley t). Charlton, . . .212 

Burn V. Carvalho, ... 54 

Burnham v. Bennett, . . 142 

Burrell's Case, .... 146 

V. Egremont, . . . 270 

V. Nicholson, ... 15 

Burrongh v. Philcox, . . 30 

Burroughs v. Elton, . . . 252 

V. Oakley, . . 87 

Burton v. Eggington, . . 322 

Butcher V. Butcher, . . . 186 

Bullint'. Masters, . . . 378 

Byde i>. Masterman, . . 11,306 

Byne v. Vivian, . . . 191 

Byrchal v. Bradford, . 63, 251 

Cadman v. Horner, ... 84 

Cadogan v. Kennett, . . 147 

Cafe V. Bent, .... 39 

V. Roberts, ... 39 

Calcraft v. Roebuck, . . 87 

■y. West, . . .213 

Caldecottv. Griffith, . . 239 

Caldwell v. Van Vlissengcn, . 212 

Calvert v. Godfrey, . . .285 

Camp V. Moody, .... 388 

Campbell v.. Mackay, 282, 310, 335 

V. Scott, . . .215 

V, Solomons, . . 206 

Cann v. Cann, . . . . 24 



12 



Cannings v. Flower, 
Capel V. Girdler, 
Capper v. Spottiswoode, 
Carmichael v. Hughes, 
Carpmael v. Powes, . 
Carr v. Appleyard, 
Carter v. Boehra, 
Cartwright v. Cartwright, 
Carver v. Bowles, 
Carysfoote, Re, 
Cass V. Cass, 
Castellain v. Blumenthal, 
Cathcart v. Lewis, 
Caton V. Lewis, 
Catton V. Carlisle, 
Caulfield v. Maguire, 
Cavan v. Pnlteney, 
Cawder v. Lewis, 
Chalie v. Pickering, 
Chalmer v. Bradley, 
Chamberlain v. Lee, 
Champernowne v. Scott, 
Champion v. Champion. 
Chancey's Case, 
V. May, 
Chant V. Brown, 
Chaplin v. Chaplin 
Chapman v. Chapman 

V. Esgar, 
Chappel V. Purday, 
Cherry v. Boultbee 

V. Mott, 
Chervet v. Jones, 
Chesterfield, Earl of, v. Janssen, 
Chippendale, Ex parte, 
Cholmondely v. Clinton, 
113, 
Christian v. Corren, . 
V. Foster, . 
V. Taylor, . 
Christophers v. Sparke, 
Christ's Hospital v. Grainger, 
Church V. Kemble, 
Churchman v. Ireland 
Clapham v. Shillito, 

V. White, . 
Clare v. Wood, . 
Clarendon v. Barham, 
V. Hornby, 
Claridge v. Hoare, 
Clark V. Burgh, 

V. Drew, . 
Clarke v. Bicker, 

V. Freeman, . 

V. Franklin, . 

V. Grant, 

I'. Ormonde, Earl of, 

V. Parker, 

V. Re, 

V. Royle, 



287 

52 

128 

287 

370 

371 

179 

45 

94 

297 

372 

356 

317 

14 

413 

269 

96 

150 

199 

228 

89 

384 

3G4 

105 

321 

6, 15 

288 

4, 309 

257 

400 

223 

71 

20 

187 

124 



119, 191, 302 

65 

390 

11 

115 

68 

95 

94 

177 

356 

132 

263 

231 

3,4 

174 

354 

172 

217 

139 

84 

259 

186 

286, 297 

. 128 



TABLE OF ENGLISH CASES. 



XXI 



Clarke's Charity, In re, 


. 


76 


Clay V. Willis, . 




256 


Clayton v. Cookes, . 




65 


V. Meadows, 


. 


376 


V. Nugent, . 




376 


V. Winchelsea, 




338 


V. Illingsworth, . 


, 


83 


Clayton's Case, 


. 


221 


Clementson r. Gandy, 


. 


95 


Clements v. Bowes, . 


. 


320 


Clermont v. Tasburgh, 




84 


Clowes V. Beck, 




392 


Clifford V. Turrell, . 


83 


,382 


Clinan i'. Cooke, 


, 


87 


Close V. Wilberforce, 




142 


Clough V. Bond, 


56, 58 


V. Radeliffe, . 


242 


322 


Clowes V. Higginson, 




85 


Clunn V. Crosts, 




408 


Cock V. Richards, 




187 


Cockell V. Taylor, . 




174 


Cockerell v. Cholmeley, . 




370 


Cogan V. Stephens, . 33, 


138 


392 


Colborn v. Simms, 




219 


Colclough V. Evans, . 




413 


Coleman v. Winch, . 




165 


V. Mellersh, 




226 


Coles t>. Sims, . 




152 


r. Trecothick, 




61 


CoUard v. Allison, 




218 


CoUett V. Morrison, . 




169 


Collins V. Archer, 




162 


V. Wakeman, 




33 


Collis I'. Bobbins, 




263 


CoUinson v. Wakeman, 




360 


t). Patrick, 




80 


Colman v, Croker, 




148 


Colombine v. Chichester, . 




83 


Colyer v. Clay, . 




188 


Coombe, Ex parte, 




124 


V. London Corporation 




of, . . . 




16 


Coming, Ex parte, 




124 


Commissioners of Donatioae 


1 V. 




Wybrandts, . 




69 


Connop I'. Hayward, 21, 


226, 


382 


Const V. Harris, 


243, 


354 


Coningham v. Plunkett, . 


. 


80 


Cook V. Black, . 




54 


V. CoUinridge, . 


245, 


246 


r. Hutchinson, 




33 


Cooke V. Clayworth, . 


. 


183 


V. Lamotte, 




184 


Cookson V. Cookson, 136, 


137, 


245 


Coorg V. East Ind. Co., 




8 


Coope V. Eyre, . 


. 


239 


V. Twynam, 




269 


Cooth V. Jackson, 




87 


Copis t'. Middleton, . 




269 


Corbyn v. French, 


. 


71 



. 82 
. 224 

313, 403 
. 210 
. 316 

223, 387 
. 39 
. 39 
. 268 
. 206 
. 372 

254, 256 
. 252 
. 137 
. 64 
51, 139, 263 
. 61 
. 26 
. 246 
, 245, 247 

203, 205 
. 269 



241 



Coslake v. Till, 
Cottom V. Partridge, 
Cottingham v. Shrewsbury 
Coulson V. White, 
Court V. Jeffery, 
Courtenay v. Williams, 

V. Courtenay, 
Coventry v. Coventry, 
Cowell V. Edwards, . 
Cowtan V. Williams, 
Cox V. AUingham, 

Creditors of, . 

Lady, Case of, 

Crabtree v. Bramble, 

Crackfelt v. Bethune, 

Cradock v. Owens, . 

V. Piper, 
Crawford v. Fisher, . 
Crawshay v. Collins, 

V. Maule, . 

V. Thornton, 
Craythorne t'. Swinburne, 
Creak v. Capel, .... 351 
Greaser v. Robinson, . . 301 

Creuze v. Hunter, . . . 388 
Croft V. Day, . . . .217 
Crompton v. Wombwell, . . 413 
Crosbie v. Tooke, . . . 177 
Cross V. Cheshire, . . . 240 
r. Sprigg, . . .106 

Crosse v. Bedingfield, . . 20 
Crossley v. Derbj' Gas Company, 219 
Crowder v. Tinkler, . . .211 
Crowfoot V. Mander, . . 404 

Crowley's Case, . . . 197 

Cruikshank v. Mc Vicar, . . 309 
Cruttwell V. Lye, . . 217, 246 
Cudd V. Rutter, ... 83 

Gumming, Re, . . . . 293 
Curd V. Curd, ... 15, 382 
Curling v. Towshend, . . 347 
Curtis V. Curtis, . 234, 235, 236 

Gustance v. Bradsbaw, . . 246 
Cutler V. Simons, . . . 352 
Cutler's Trust, .... 48 

Dale V. Hamilton, . . 28, 35, 87 

D'Almaine v. Boosay, . . 215 

Daniel v. Skipwith, . . 120 

Darby v. Baines, . . . 233 

V. Darby, . . .239 

D'Arcy v. Blake, . . 51 

Darley f. Nicholson, . . 199 

Darthez v. Clemens, . . . 226 

Dartmouth v. Holdsworth, . 7 

Daubeny v. Gockburn, . . 185 

Davenport v. Bishopp, . 78, 146 

V. Davenport, . . 208 

Davies v. Davies, . . . 297 

V. Denby, ^ . .112 



xxu 



TABLE OF ENGLISH CASES, 



Davies v. Quarterman, . . 302 
Davis V. Bluck, . . , .416 
V. Cripps, . . .11 

V. Dending, . . .112 
V. Dowding, . . 121, 285 
V. Frowd, . . .262 

V. Humphreys, . ' . 269 

V. Johnson, . . . 233 
V. Marlborough, Duke of, 

181, 353 
V. Strathmore 
V. Thomas, 



155 
. Ill 
. 212 
. 292 
. 282 
. 268 
. 209 
. 36 
53, 56, 161 
. 397 



Pawson V. Paver, 

Re, 

V. Jay, 

V. Lawes, 
Day V. Merry, 
DeaconiJ. Smith, 
Dearie v. Hall, . 
Dearman v. Wych, 
De Beauvoir v. De Beauvoir, . 138 
De Costa v. Scandret, . . \19 
Deeks v. Strutt, . . .250 

Deerhurst, Lord, v. St. Albans, 

Duke of, .... 42 

Deering v, Winchelsea, Earl of, 

268, 269 
Deeth v. Hale, . . . .137 
De Manneville v. De Manneville, 

281, 283 
Dent V. Bennett, . , . 185 
Denton v. Davis, . , . 144 
Denys v. Locock, . . 338, 340 
V. Shruckburgh, . . 191 
Derby, Earl of, v. Athol, Duke of, 19 
Derbyshire v. Home, . . 402 

Desborough v. Harris, . . 203 
De Themmines v. De Donneval, 71, 73 
De Vaynes v. Morris, . . 407 

Devon, Duke of, v. Eglin, . . 320 
Devonshire v. Newenham, . 315 

Dietrichsen v. Cabburn, . . 82 
Dickinson v. Grand Junction 

Canal Co., . . . .207 
Dickson V. Gayfere, . . .136 
Digby, Ex parte, , . .297 
Dikes, Ex parte, . . . 297 
Dillon V. Coppin, ... 80 
V. Parker, ... 96 
Dilly V. Doig, . . . .200 
Dimes v. Steinburg, . . 248, 353 
Dinwiddie v. Bailey, . . 221 

Dixon V. Wyatt, . . - . 410 

Dobson «. Land, . . . 118 

Docker v. Somes, ... 64 
Dodd V. Lydall, , , .223 

Doddington v. Hallett, . . 268 
Doe V. Lewis, .... 146 
V. Manning, . . . 146 

V. Rolfe, . . . .146 



Doe V. Rusham, 

V. Jones, 
Doloret v. Rothschild, 
Donaldson v. Beckett, 
Donovan v. Needham, 
Dos Santos v. Frietas, 
Dovrne v. Morris, 
Downes v. Grazebrook, 



146 
52 
83 

213 

103 
9 

113 
61 



Downshire, Marquis of, v. Sandys, 209 

Drake v. Drake, . . . 401 

V. Marty n, . . .58 

Druce v. Denison, ... 95 

Drummond v. Pigon, 117, 195, 359 

Re, . . . . 297 

Dryden v. Frost, . . .111 

Dubless V. Flint, . . .351 

Dubost V. Beresford, . . 216 

Ex parte, . . .103 

Du Hourmelin v. Sheldon, 42, 138 

Duke V. Barnett, ... 87 

Duke of Ancaster v. Mayer, 261, 263 

Dk. Brunswick?;. Dk. Cambridge, 

11, 345 
Duke of Devon v. Eglin, . 320 

Dummer v. Corporation of Chip- 
penham, .... 4 
Dummer v. Pitcher, ... 95 
Duncan v. Campbell, . . 49 
V. McCalmont, . . 197 
Duncuft V. Albrecht, . . 83 
Dundas v. Dutens, . . . 148 
Dunnage v. White, . . . 189 
Dursley v. Fitzhardinge, . . 24 
Dutton V. Morrison, . . . 242 
Duvergier v. Fellowes, . . 242 
Dyer v. Dyer, .... 35 
D3'kes V. Blake, . . .178 
Dyson v. Morris, . . . 415 



Eades v. Harris, 
Earle v. Pickin, 
Earnshaw v. Thornliill, 
East V. East, 
E. I. Company v. Bazett, 
/ V. Boddam, 

V. Campbell, 
V. Donald, . 
V. Keighly, 
V. Vincent, 
Ede V. Knowles, 
Eden v. Bute, Lord, . 
Eddleston v. Collins, . 40 

V. Vick, 
Edsell V. Buchanan, . 
Edwards v. Abrey, . 
V. Brown, . 
V. Burt, 
V. Edwards, 
V. Grand Junction Rail- 
way, . . 79 



408 
305 
358 
21 
377 
168 
3 
188 
388 
150 
147 
399 
2, 403 
217 
335 
297 
187 
186 
303 



92 



TABLE OF ENGLISH CASES. 



XXIU 



Edwards v. Jones, 
V. McLeay, 
V. Martin, 
V. Meyrick, 
Egerton v. Brownlow 

V. Jones, 
Eland v. Eland, 
Elgie V. Webster, 
Elias, Matter of, 
Elibank v. Montolieu 
EUard v. Cooper, 
Elliot V. Cordell, 
V. Turner, 
Elliott V. Merryman, 
Ellis V. Lewis, . 
Ellison V. Elwin, 
Emerson v. Harland, 
Empringham v. Short, 
England v. Downs, . 
England, Mary, Re, . 
Errington v. Aynesley, 
Esdaile v. Stephenson, 
Etty V. Bridges, 
Evans V. Bieknell, . 
V. Brown, 
V. Cogan, 
V. Stokes, 
Evelyn v. Evelyn, 
V. Lewis, 
Exton I'. Scott, . 
Eyre v. Countess of Shaftesb 
f. Everitt, 
V. Marsden, 
EytOQ V. Mostyn, 

Fallowes v. Williamson, 
Fairthorne v. Weston, 
Farina v. Silverlock, 
Farquharson v. Seton, 
Farr v. Pearce, . 
Farwell v. Coker, 
Faulder v. Stuart, 
Faulkner v. Daniel, 
Featherstonehaugh v. Fenwi 
60, 
Fell V. Brown, . 
Fellowes v. Gwydyr, Lord, 
Fencott v. Clarke, 
Fenns v. Craig, . 
Fenn v. Edmonds, 
Fenner v. Taylor, 
Fenton r. Brown, 
Fenwick v. Reed, 
Fereday v. Wightwick, 
Fermor, Ex parte, 
Few V. Guppy, . 
Field, Ex parte. 
Fight V. Bolland, 
Fildes V. Hooker, 
Finch V. Finch, 



80, 356 

. 178 

. 121 

. 184 

42 

. 387 

. 156 

. 240 

, 294 

48 

. 275 

49 

. 109 

. 156 

. 94 

. 142 

. 338 

199, 385 

182, 383 

. 288 

. 83 

. 89 

. 161 

151, 174 

. 264 

. 263 

. 321 

. 265 

. 199 

80 

281 

107 

• . 138 

196, 356 

. 414 

. 241 

. 378 

313, 403 

. 246 

. 189 

11 

112, 270 

ck, 

241, 245 

323 

177 

350 

179, 321 

206 

49 

392 

126 

247 

293 

357 

272 

82 

91 

100 



lury 



Finch V. Shaw, . . 151, 162 

Fisher v Fisher, . . . 365 

Fisk V. Norton, . . . 379 

Fitch V. Weber, , . .138 

Fitzgerald, Re, . . 291, 298 

Fitzpatrick v. Nowlan, . . 82 
Flack r. Holm, . . .360 

Flamank, Ex parte, . . . 136 
Flavell V. Harrison, . . . 217 
Fleming v. Buchanan, 99, 263, 276 
Fletcher v. Ashburner, . 136, 137 
V. Fletcher, ... 80 
Flight V. Bolland, ... 82 
Flint V. Brandon, ... 83 
V. Warren, ... 32 

Flower v. Hartopp, . . . 386 
Foley V. Hill, . 20, 226, 338, 339 
FoUand v. Loraotte, . . . 406 
Forbes v. Peacock, . . . 156 
Ford V. Dolphin, ... 15 

Fordhara v. Wallis, . . 269, 275 
Fortescue v. Barnett, . . 80 

Forth V. Norfolk, Duke of, . 129 

Foss V. Harbottle, , . . 335 
Foster v. Alanson, . . . 240 

V. Cockrell, . . 53, 161 

V. Handley, . . . 254 

Fourdrin v. Gowdey, . . 138 

Fowler v. Garlike, . . . 33 

Frampton v. Frampton, . . 45 

Freeman v. Baker, . . .178 

V. Fairlie, . . 57, 351 

V. Lomas, . . . 223 

V. Tatham, ... 21 

Frelland v. Stansfield, . . 243 

Frere v. Greene, ... 24 

V. Moore, . . . 162 

Frewin v. Lewis, . . . 212 
Frowd V. Lawrence, . . . 198 
Fuller V. Bennett, . . .157 

V. Knight, ... 62 
Fulton V. Gilmore, . . . 347 
Fyler v. Fyler, .... 62 

Gaffee's Trust, .... 44 

Garcias v. Ricardo, . . . 401 

Garden v. Ingram, . . .118 

Gardner v. Blane, . . . 284 

V. Lachlan, . . 54, 161 

t'. Marshall, . . 49 

V. McCutcheon, . . 357 

V. Rowe, ... 28 

V. , . . . 360 

Garmstone v. Gaunt, . . 285 

Garrard v. Lauderdale, Lord, . 31 
j Gartside v. Outram, . . • 6 
! Gaskell i>. Gaskell, . . 230,316 
\ Gaylor v. Fitzjohn, . . . 385 
I Gee t). Pritchard, . . 213,216 
I George v. Milbank, . . . 146 



XXIV 



TABLE OF ENGLISH CASES. 



Gervis v. Gervis, 




265 


Gibbs V. Glamis, 


, 


31 


Gibson v. Bell, . 


, 


223 


V. D'Este, 




178 


GiflFard v. Hort, 


399 


412 


Gilbee v. Gilbee, 


. 


291 


Gillespie v. Alexander, 


• . 


262 


Gillett V. Peppercorne, 


. 


184 


Gilpin V. Southampton, 


. 


259 


Gingell v. Home, 




249 


Glasscott V. Lang. . . 


. 176 


198 


Glascott V. Copperminers' 


Co. 






9,20 


314 


Glassington v. Thwaites, 


. 241 


333 


Glendinning, Ex parte, 




107 


Glengall v. Eraser, . 




12 


Gloucester, Corp. of, v. W( 


>od, . 


401 


Gljn V. Duesbury, 




204 


Glynn v. England, Bank o 


J 


168 


Goddard, Re, . 




117 


V. Snow, 


, 


182 


Goldsmid v. Goldsmid, 




105 


Gooch's Case, . 




146 


Goodall V. Little, 


• e'. 


r, 17 


Goode!^. Burton, 




126 


Goodsonj;. Ellison, . 


&9 


318 


Goodman v. Sayers, 




193 


V. Whitcomb, 24 


1,243, 


354 


Gordon v. Atkinson, 


33 


138 


V. Gordon, . 


179 


189 


V. Graham, . 


110 


164 


Re, . . 




292 


V. Simpkinson, 


. 


236 


Gore V. Bowser, 




6 


V. Gibson, 


. 


183 


Gosling V. Carter, 




255 


Goss V. Nugent, Lord, 


84, 87 


Goulson V. White, 


, 


210 


Graham v. Coape, 


, 


333 


V. Oliver, 




91 


Grant v. Grant, 




361 


Re, . 


. 384, 


387 


V. Lynam, 




30 


Gray v. Downman, . 




173 


V. Haig, . 


, 


403 


Great North of England , 


Tune- 




tion Railway V. Clarence 


Rail- 




way, . . . . 


, 


218 


Great Northern R. R. v. 


Man- 




Chester R. R., 




207 


Greedy v. Lavender, . 




49 


Green v. Bridges, 




106 


V. Green, 


Vs 


, 92 


V. Holden, 




117 


V. Pledger, 




20 


V. Weaver, 




5 


Greenlaw v. King, 




7 


Greenough i'. Gaskell, 




6 


Greenway, Ex parte, 




168 


Greenwood v. Atkinson, . 




347 



Greenwood v. Evans, . . 55 

V. Taylor, . 121, 272 

V. Wakeford, . 39, 62 

Gregory v. Gregory, ... 58 

V. West, . . ,386 

Gretton v. Haward, 79, 92, 96, 97, 285 

Grey v. Grey, . . . .102 

Griffith V. Ricketts, . 31, 407, 414 

Grimstone, Ex parte, . . 291 

V. Gaunt, . . .285 

Grinnell v. Cobbold, . . . 23 

Grugeon v. Gerrard, . . . 165 

Gwydir, Lord, Ex parte, . . 293 

Habershon v. Blurton, . . 242 

Hale V. Hale, . . . 243, 354 

Halford v. Gillow, . . .198 

Hall, Ex parte, . . . 292, 293 

Hall & Hinds, Re, . . . 192 

r. Hall, . . . .243 

V. Hardy, . . . .192 

V. Hill, 102, 103, 104, 105, 106 

V. Jenkinson, . . . 354 

V. Laver, .... 387 

Hallett V. Bousfield, . . .271 

Halliday's Est.. Re, . . . . 284 

Halliwell v. Tanner, . . . 264 

Halsey v. Halsey, . . . 288 

Hambrook v. Smith, ... 5 

Hamilton v. Houghton, . . 416 

t;. Marks, . . 203, 205-6 

V. Royse, . . . 273 

• V. Watson, . . 179 

V. Wright, ... 59 

Hammond v. Messenger, . . 303 

Hampshire v. Bradley, . . 59 

Hampson v. Hampson, . . 377 

Hanby v. Robers, . , . 276 

Hansard v. Robinson, . . 168 

Hanson v. Keating, . . 48, 191 

Hardman v. Ellames, . . 17 

Harday v. Hawkshaw, . .136 

Hare v. Hale, . . . .243 

Hares v. Stringer, . . . 318 

Hargrave v. Hargrave, . . 82 

Harland v. Binks, ... 31 

V. Emerson, . . 338 

Harman v. Jones, . . 218, 357 

Harmer v. Gooding, . . . 320 

Harmood v. Oglander, . 262, 378 

Harries v. Bryant, ... 89 

Harris v. Davison, . . . 132 

V. Harris, . . . 339 

Harrison v. Gurney, , . . 198 

V. Heathorn, . . 242 

V. Nettleship, . . 197 

Hart V. Alexander, . . .173 

Hartwell v. Chitters, . . . 256 

Harvey v. Harvey, . , . 320 

Hastings, Ex parte, . . . 297 



TABLE OF ENGLISH CASES. 



XXV 



Hatch V. , . 

Hawkins, Ex parte, . 
V. Gathercole, 
V. Hawkins, 
V. Lawse, 
Hayes, Ex parte, 
Haynes v. Forshaw, 
Hayward v. Purssey, 
Hayteer v. Trego, 
Head r. Egerton, 
Healey v. Jagger, 
Heathcote v. Hulme, 
Heighing v. Grant, 
Heming v. Swinnerton, 
Henderson v. Eason, 
Henley v. Stone, 
Hepworth v. Heslop, 
Hercey v. Ferres, 
Hercy v. Birch, . 
Hereford v. Kavenhill 
Herring v. Cloberry, 
Hertfort v. De Zichi, 

Re, 
Hewitt t'. Loosemore, 
Hickling v. Boyer, 
Higgins r. Joyce, , 
Higginson v. Clowes, 
Hill V. Barclay, . 
V. CroUs, 
V. Gomme, . 
V. Thompson, 
Hills V. Downton, 
Hilton V. Granville, 
Hindson v. Weatherill. 
Hindman v. Taylor, 
Hine t>. Dood, 
Hinves v. Hinves, 
Hitchcock V. Giddings, 
Hitchens v. Coflgreve, 
Hithcox V. Sedgwick, 
Hobhouse v. Courtenay, 
Hobsun i". Blackburn, 

V. Ferraby, 
Hockley v. Bantock, 
Hodgens r. Hodgens, 
Hodle V. Healey, 
Hodgson V. Shaw, 
Hodson V. Ball, 
Hoggart V. Cutts, 
Holder i'. Chamburry, 
Holdich r. Holdich, 
Holdin V. Durbin, 
Holford V. Phipps, 
Holland v. Baker, 
Holloway v. HoUoway, 

Millard, 
Holmes v. Baddeley, 
V. Coghill, 
Re, 
Holt V. Dewell, . 



218, 



415, 



. 351 
. 135 
7 
. 320 
. 255 
. 286 
. 251 
, 303 
. 73 
. 160 
. 370 
60 
G4 
. 193 
. 232 
. 318 

261, 390 
15 
82 

138, 140 
6, 399 
. 316 
. 358 
. 151 
. 261 
. 179 
. 172 
. 109 
82 
. 283 
. 218 
. 101 

3r)6, 357 

184, 248 
19, 339 
. 153 
. 57 
. IgS 

321, 409 
. 157 
. 324 
. 277 
. 289 
. 125 
49, 288 
. 119 
. 269 

416, 417 

. 204 

. 238 

94 

. 39 

59 

. 415 

. 217 

. 147 

7 

. 100 

. 292 

. 101 



Holyladd, Ex parte, . . .292 

Hood V. Pimm 372 

Hooper ». Brodrick, . . .218 

Ex parte, . . 123, 124 
Hope V. Hope, . . . .24 
Horlock V. Smith, . . .119 
Horncastle v. Charlesworth, 

230, 231, 232 

Horner's Est., Re, . . . 136 

Hoste V. Pratt, . . . .287 

Houghton, Ex parte, ... 33 

V. Houghton, . . 245 

Houlditch V. Collins, . . .134 

V. Donegal, . . 410 

Housefield, Ex parte, . . .123 

Hovenden v. Annesley, 63, 176, 228 

How V. Broomsgroove, . . 200 

V. Vigues, .... 120 

Howard v. Digby, ... 46 

V. Harris, . . .112 
Howden v. Rogers, . . . 360 
Howe V. Dartmouth, Lord, . 57 
Howell V. George, . . .21 
Hudson V. Maddison, . . .211 
Hughes V. Fades, . . . 372 

r. Garner, . . . 397 

V. Stubbs, . . 31, 80 

Huguenin v. Basely, . 176, 185, 354 
H ungate v. Gascoyne, * .417 
Hunt V. Penrice, . . . 338 

Hunter v. Atkins, . . . 185 
V. Daniel, ... 54 
Hurst V. Beach, . . . 103, 104 
Hutchinson v. Sheperton, . . 192 
Hyde v. Whitefield, . . .360 

Ibbetson v. Ibbetson, . . . 265 
Incorporated Society v. Richards, 

69, 75 
Inge, Ex parte, .... 75 
Inman v. Whitney, 
Innes v. Jackson, 
V. Sayer, . 
Ireson v. Denn, . 
Irnham v. Child, 
Irvin V. Young, , 



Jack V. Burnett, . 

Jackman v. Mitchell, 

Jackson v. Leaf, 
t'. Petrie, 
V. Stopherd, 

Jacob r. Lucas, . 

Jacobs V. Richards, 

Jacques i'. Chambers 

James v. Dean, . 
Ex parte, 

Janson r. Solarte, 

J. C, Ex parte, . 

Jefferys i'. Jeflferys, 



14 
174 

97 
165 
170 
227 

71 
180 
198, 260 
360 
240 
302 
183 
265 

60 

59 

9 

280 

78 



XXVI 



TABLE OF ENGLISH CASES, 



Jefferys v. Smith, . 247, 


354, 356 


Jefferyes v. Purday, . 


. 215 


Jeffs I'. Wood, . 


. 105 


Jenkins v. Brj-ant, 


. 385 


V. Cross, 


. 412 


V. Hilles, 


. 84 


V. Parkinson, 


. 81, 360 


Jennings v. Broughton, 


, 176 


V. Patterson, 


. 258 


Jervis v. White, . 


179, 351 


Jervoise v. Northumberland, 


Duke 


of, . 


42, 84 


v. Silk, . 


. 287 


Jessop V. Watson, 


. 140 


Jew V. Wood, 


. 205 


Jodrell V. Jodrell, 


. 45 


Johnson v. Child, 


. 264 


V. Compton,. 


. 257 


V. Curtis, 


. 226 


V. Johnson, . 


48, 90 


V. Legard, . 


146, 147 


Johnston t'. Beattie, . 281 


282, 291 


V. Rowlands, 


. 31 


Jolland V. Stainbridge, 


. 155 


Jones V. Alephsin, 


' . 361 


V. Beach, 


172, 173 


V. Gilham, 


. 206 


V. Goodrich, . 


. 354 


V. Howells, 


. 415 


V. Jones, . 53, 161 


162, 270 


V. Kearney, 


. 176 


V. Lane, . 


. 174 


V. Morgan, 


. 105 


V. Mossop, 


. 223 


V. Noy, 


. 243 


V. Pugh, . 


6 


V. Smith, . 


159, 165 


V. Tanner, 


. 250 


John V. Morshead, 


230, 231 


Joy V. Campbell, 


58 


Joyce V. De Moleyns, . 


. 162 


Kater v. Roget, . 


93, 94 


Kay V. Marshall, 


218, 340 


Keeble, Ex parte. 


. 287 


Keeley v. Hooper, 


. 393 


Kekewick v. Manning, 


53, 55, 80 


Kelly V. Hooper, 


. 392 


V. Jackson, 


6 


Kemble v. Farren, 


. 108 


V. Kean, 


82, 207 


Kemp V. Pryor, . 


. 179 


Kendall, Ex parte. 


. 272 


V. Granger, . 


. 67 


Kennedy v. Green, 


16, 157 


V. Lee, 


85 


Kennington v. Houghton, . 


. 222 


Kent V. Burgess, 


, 288 


V. Jackson, 


. 320 


Keppell V. Bailey, 


. 152 



Kerr v. Dungannon, Lord, . . 159 

V. Rew, ... 20, 314 

V. Wauchope, ... 97 

Kerrich v. Bransby, . . . 250 

Keys V. Williams, . . . 125 

Kidd V. Cheyne, . . .419 

Kidney v. Coussmaker, . 95, 147 

Kilminster v. Pratt, . . .409 

Kimberly v. Jennings, . . 207 

Kincaid's Trust, . ... 48 

King V. Mullin, .... 59 

V. Daccombe, ... 50 

V. Denison, ... 33 

V. Hamlet, . . 186, 187, 191 

V. Smith, . . . .114 

V. Wilson, .... 88 

King of Sicilies v. Wilcox, . 2, 3 

Kirby v. Barton, . . .260 

V. Marsh, .... 61 

Kirk V. Eddowes, . . 103, 104 

Kirby Ravensworth Hospital, Ex 

parte, ..... 75 

Kirwan v. Daniel, ... 73 

KnatchbuU v. Fearnhead, . .25 7 

V. Grueber, . 87, 90 

Knight V. Boughtoq, . . 29, 31 

V. Davis, . . .265 

V. Knight, . . .319 

V. Majoribanks, . . 61 

V. Waterford, . . .236 

Knollys i>. Shepherd, . . . 141 

Knott V. Cottee, .... 31 

Ex parte, . 161, 162, 164 

Knox V. Symonds, . . . 193 

LadyThynn w. Earl Glengall, 104, 105 

Lacey, Ex parte, . . 59, 61 

Lake v. Skinner, . . . 373 

Lambert v. Hutchinson, . . 302 

Lancashire v. Lancashire, . . 375 

Lancaster v. Evors, . . 10, 17 

Re, . . . . 301 

Lanchester v. Thompson, . . 321 

Lane' V. Dighton, . . 64, 144 

V. Newdigate, . . .218 

V. Paul, . . . .350 

Re, 286 

Langley v. Fisher, 153,370, 406, 407 
LangstafiFe v. Fenwick, . .112 
Langston v. Ollivant, . . 56 

V. Walker, ... 56 
Langton v. Horton, . 55, 149, 203 
Lansdowne v. Lansdowne, . 376 

Larkins v. Paxton, . . 261, 390 
Latimer v. Neale, . . 15, 17 
Law V. Hunter, .... 3G3 
Lawless v. Shaw, ... 31 
Lawrence v. Smith, . . . 216 
Lawton v. Campion, . . . 189 
Leaf V. Coles, . . . 243, 292 



TABLE OF ENGLISH CASES, 



XXVll 



Leathart v. Thorne, . . . 320 

Lechmere v. Brasier, . . . 372 

Lee V. Lee, . . 407, 409, 416 

V. Milner, . . . .212 

V. Pain, .... 103 

V. Park, . . . .260 

V. Reed, . . . . 4, 5 

V. Willcox, . . .384 

Leeds v. Amherst, . . . 209 

V. Duke of, V. New Radnor, 238 
Le Grand v. Whitehead, . . 388 
Leith I'. Irvine, .... 112 
Lenaghan v. Smith, . . . 318 
Lench v. Lench, . . . 144 

Le Neve v. Le Neve, 

151, 153, 157, 158 
Leo V. Lambert, 
Leonart v. Baker, 

V. Leonard, 
Lewellyn v. Cobbold, 
Lewis V. Davies, 

V. Fullarton, 

V. Hillman, 

V. Langdon, 

V. Maddocks, 

V. Zouche, 
Lichfield v. Bond, 
Liddell v. Norton, 
Lightfoot V. Heron, 
Lingard v. Bromley, 
Lingen v. Sowray, 
Lister v. Turner, 
Litchfield v. Ready, 
Liversey v. Liversey, 
Llewellyn v. Badely, 
Lloyd V. Jei\kins, 

V. Johnes, 

V. Mason, 

V. Passingham 

V. Spillets, 

V. Wait, . 

V. Williams, 
Locke V. Colmau, 
Lockhart v. Hardy, 
Lockwood V. Fenton, . . 282 

Lodge V. Lyseley, . . . 149 
London, City of, v. Mitford, . 89 
V. Perkins, 200, 201 
288, 289 



361 
151 
189 
180 

12 
215 

61 

246 

144 

315 

3 

12 
183 
268 
137 
125 
114 
387 
9, 15 
357 
1, 412 

49 
355 

35 
376 

49 
377 
117, 120, 264 



316, 41 



Long V. Long, 

V. Storie, . 

V. Yonge, . 
Longman v. Winchester, 
Lord Aldborough v. Tyre, 
Lord V. Wightwick, . 
Lorimer v. Lorimer, . 
Loscombe v. Russell, 
Loveday, Ex parte, . 
Lovell V. Hicks, 
Lovegrove v. Cooper, 
Low V. Carter, . 



320 

321 

215 

186 

46 

232 

241 

293 

399 

253, 256 

. 257 



Lowe w. Williams, 
Lowes V. Lowes, 
Lowndes v. Cornford, 
V. Davies, . 
Ludlow, Corporation of, v 

house, 
LufFkin v. Nunn, 
Lumley v. Wagner, . 
Lumsden v. Fraser, . 
Lund V. Blandshard,^ 
Lupton V. White, 
Lushington v. Boldero, 
Lyon V. Colville, 
Lyons v. Blenkin, 
Lyre v. Connell, 



Maber v. Hobbs, . . . 373 

Macartney v. Graham, . . 168 
Macbride v. Lindsay, . . 320 

Macclesfield, Earl of, v. Davis, . 92 
Maccubbin v. Cromwell, . . 58 
Mackenzie v. Johnston, . ,221 
V. Robinson, . 118, 120 
Mackinnon v. Stewart, . . 3.1 
Mackreth v. Symmons, . 128, 129 
Macloud V. Annesley, . . 318 

Macnamara v. Maquire, . 198, 359 
Magdalen Coll. v. Att.-Gen. , . 69 
Maitland v. Bateman, . . 56 

Malcolm v. Scott, . . 54, 413 
Maiden v. Fyson, . . 80, 392 

Malins v. Freeman, ... 85 
Man V. Ricketts, . . 250, 410 

Mandeno v. Mandeno, . . 394 

Manser v. Jenner, . . 3S6, 357 
Manton i>. Moore, . . .151 
Mare v. Malachy, . . .317 
Margrave v. Le Hooke, . . 165 
Marlborough v. Wheat,- . . 385 
Marrow, Re, .... 115 
Marsh v. Lee, . . .110, 162 
Marshall v. Colraan, . . 241, 243 
V. IloUoway, . . 287 
Martin v. Pycroft, ... 87 
Martindale v. Booth, . . 151 

Martinez v. Cooper, . . . 151 
Mason v. Bogg, . 121, 261, 277 

Massey V. Banner, . . 58,221 
V. Massy, . . . 264 
V. Parker, . . 44, 45 
Masterman v. Lewin, . . 206 

Matson v. Swift, . . .139 

Matthews v. Brise, ... 58 
V. Dana, . . . 380 
Maundrell v. Maundrell, . . 160 
Maxwell v. Maxwell, . . 93 

V. Mountacute, . . Ill 
Mayhew v. Crickett, . . . 106 
Mayor, &c., of Basingstoke v. 
Ld. Bolton, . . . 237, 238 



12 

94 

. 201 

9 

rreen- 

63, 76 

153, 312 

. 207 

. 423 

. 211 

. 222 

. 316 

. 255 

280, 283 

, 206 



XXVlll 



TABLE OF ENGLISH CASES. 



16 



55, 



45 
80 
. ' CO 
. T42 
. 165 
. 268 
. 146 
1, 205, 384 
. 321 



wer, 



218 
351 



McCalmont v. Rankin, , 176, 303 
McDermot v. Kealy, . . . 397 
McDougal, JSx parte, . . . 293 
McFadden v. Jenkyns, . 28, 54, 80 
Mcintosh V. Great Western Rail- 
way, . ...... 24 

MeMahon v. Burchell, 

21,223,232,305,382 
Medley v. Horton, 
Meek u. Kettlewell, . 
Melland v. Gray, 
Mellersh v. Bridger, . 
Mergrave v. Le Hook, 
Merryweathcr v. Nixon, 
Metcalfe v. Pulvertoft, 
Meux V. Bell, 

V. Maltby, 
Mexborough, Earl of, v. Be 
Meyer v. Montrio, 
Micklethwaite v. Atkinson 
Middleton v. Dodswell, 
V. Middleton, 
Mill V. Hill, 
Milland v. Gray, 
Millar v. Taylor, 

V. Craig, . 
Miller v. Gow, . 

V. Warmington, 
Miles I'. Durnford, 
Miligan v Mitchell, . 
Millington v. Fox, 
Mills V. Farmer, 
V. Mills, . 
Milner v. Harewood, . 
Milnes v. Davison, 
Mirehouae v. Scaife, . 
Mitchell V. Hayne, 
Milford V. Reynolds, . 
Moggridge v. Thackwell, 
Mole V. Mansfield, 
Molton V. Camroux, . 
Mondey v. Mondey, . 
Money v. Jordan, 
Monro v. Taylor, 
Monteith v. Taylor, . 
Montfort, Lord, v. Cadogan 
Moodie v. Bannister, 
Moons V. De Bernales 
Moore v. Crofton, 

V. Frowd, 

V. Prior, . 

V. Usher, 
Moores v. Choat, 
Morgan v. Annis, 
V. Goode, 
V. Shaw, 
Morley v. Bridges, 
Morrett v. Paske, 
Horice ». Durham, Bishop of, 
V. Langham, . 



. 353 

263, 274 
. 191 
. 60 
. 213 
. 227 
. 382 
. 237 
. 251 
18 

392, 393 
. 71 
. 57 

289, 413 
. 21 
. 275 
. 205 
. 67 
71, 73 
. 231 
. 183 

121, 285 

196, 356 
. 88 
. 409 
, Lord, 55 
. 314 
60, 376 
. 77 
61 
. 260 
. 205 

125, 142 
. 248 
. 356 
. 352 
. Ill 

163, 165 
. 67 
. 376 



Morice v. Swabey, 
Morrison v. Moat, 
Morrell v. Wooten, 
Morris v. McNeil, 
. V. Morgan, 
V. Morris, 
Morrison v. Arnold, 
Mortimer v. Eraser, 

V. Shortall 
Mortlock V. Buller, 
Moss V. Baldock, 
Mossop V. Eadon, 
Mostyn v. Spencer, 
Motlej-- V. Downman, 
Mozley v. Alston, 
Muckleston v. Brown 
Muddle V. Fry, . 
Mullock V. Jenkins, 
Munch V. Cockerell, 
Mundy i;. Jolifife, 
V. Mundy, 
Munoz V. De Tastet, 
Murless v. Franklin, 
Murray v. Barlee, 
V. Elibank, 
V. Shadwell 
V. Vipart, 
V. Walter, 
Mutter V. Chanwell, 



14 
216 

15 
360 
334 

25 

25 
335 
171 
55, 81 
396 
168 
368, 370 
217 
321 

33 
376 
320 
318 

87 
234 
322 
162 

46 
48, 49 
364 
324 

15 
413 



31 



il. 



Nairn v. Prowse, . . . 129 
Nash V. Morley, . . .67 

Navulshaw v. Brownrigg, . . 222 
Naylor v. Winch, . . 189, 190 
Neale v. Neale, .... 189 
Neate v. Marlborough, Duke of, 

130, 262 
Nedby v. Nedby, 
Nelson v. Bridges, 

V. Bridport, 

V. Duncombe, 
Nelthorpe v. Holgate. 
Nesbit V. Meyer, 

Re, . 
Newburgh v. Newburgh, . 
Newby v. Reed, . 
Newcastle, Duke of, v. Lincoln 

Countess of, . 
Newcomb v. Bonham, 
Newlands v. Paynter, 
Newton v. Hunt, 
Nichols V. Chalie, 
I'. Roe, . 
Nicholls V. Maynard, 
Nicholson v. Hooper, 

V. Wordsworth, 
Nightingale v. Goulborn, 
Nokes V. Seppings, 
Norcutt V. Dodd, 
Norris v. Wilkinson, . 



35] 

413 

.383 

. 290, 291 

84, 91, 177, 315 

82 

292 

172 

269 



42 
112 
149 
187 
193 
193 
109 
150 
38 
67 
350 
148 
125 



147, 



TABLE OF ENGLISH CASES, 



XXIX 



Not'tham Bridge Companj- t. 
Southampton Railway Com- 
pany, .... 376, 377 

Norway v. Rowe, . . .11 

Nunn I'. Harvey, . . . 286 

Nurse v. Lord Seymour, 



O'Connor v. Spaight, 
Oglander v. Oglander, 
Okill V. Whittaker, . 
Oldham v. Eboral, 
Oliver v. Richardson, 
Omerod v. Hardman, 
Omrod v. Huth, 
Onslow V. Wallis, 
Ord V. Noel, 

V. White, 
Osborne r. Harvey, 
Ostell t'. Le Page, 
Ottley V. Pensam, 
Overton v. Bannister, 
Owen i". Howman, 
Owens r. Dickinson, 
Oxendon v. Compton 

Oxford V. Rodney, 



Lord, 
143, 



Padbury v., Clark, 
Padwick v. Hurst, 

V. Stanley, 
Page V. Cox, 
Re, . 
Pain V. Smith, . 
Palin V. Hathercote, 
Palmer v. Neave, 
Parker v. Fairlie, 

V. Housefield, 
Parke's Charity, In re, 
Parkhurst v. Lowton, 
Parkin v. Thorold, 
Parr v. Attorney-General 
Parrott v. Sweetland, 
Partridge v. Usborne, 
Pastey v. Freeman, 
Paterson v. Scott, . 263 
Pauli t'. Von Melle, 
Paxton V. Douglass, 
Peace v. Hains, 
Peachy v. Somerset, 



Peacock 



Burt, 

V. Evans, 

V. Peacock, 

Highfield, 

Loman, 



Peake v. 

Pearce v 

Pearne v. Lisle, . 

Pearse, Ex parte, 
I'. Green, 
V. Hewitt, 
V. Pearse, 

Pearson, Re, 



. 224 

39 

170, 172 

. 415 

. 235 

84 

. 178 

32. 50 

55 

. 356 

. 87 

. 260 

385, 386 

. 176 

. 352 

46, 258 

291, 297 
. 265 

96 

222, 226 
. 222 
. 246' 
. 301 
. 125 
. 213 
. 180 
12 

123, 125 
. 76 
4, 370 
. 88 
. 310 
. 128 

417, 418 
. 178 

275, 276 
. 205 
. 259 
. 106 

107, 108 
. 161 
. 187 
. 241 
. 174 
. 276 
. 360 
. 124 
57, 222 
. 250 
7 

295, 298 



250 



36, 41 



Pedley v. Goddard, 
Pegg V. Wisden, 
Peile V. Sloddart, 
Pelham v. Hinder, 
Pemberton v. Pemberton 
Penfold V. Nunn, 
Pennell v. Deffell, 
Penny v. Goode, 

V. Turner, 

V. Watts, 
Perkin f>. Stafford, 
Perkins v. Bradley, 
Perry v. Barker, 

V. Phelips, 

V. Truefit, 

V. Walker, 

?•. Whitehead, 
Petre v. Espinasse, 
Pettit, Ex parte, 
Phelps V. Prothero, 
Philanthropic Society v. Kemp, 
Phillipo V. Mannings, 
Phillipott's Charity, In re, 
Phillips t'. Buckingham, Duke 
of, . 
V. Clarke, 
V. Evans, 
Ex parte, 
V. Phillips, 
V. Worth, 
Pickering v. Ely, Bishop of, 

V. Pickering, 
Pickup r. Atkinson, 
Pidcock V. Bishop, 
Pierson v. Shore, 
Piggin V. Cheetham, 
Pilling V. Armitage, 
Pinkett i-. Wright, 
Pinkus I'. Peters, 
Pitt V. Cholmondeley, 
Playfair v. Thames 
Railway Company, 
Plowden v. Hyde, 
Plummer v. Wildman, 
Plunket V. Lewis, 

V. Penson, 
Policy V. Seymour, 
Pooley V. Budd, 
Pope V. Onslow, 
Portarlington, Lord v. 
Postlethwaite v. Blythe, 
Pott V. Gailini, . 
Potter V. Waller, 
Power V. Walker, 

V. Whitmore, 
Pownal V. Ferrand, 
Powys V. Blagrave, 

V. Mansfield, 
Praed v. Hull, . 
Prendegast v. Eyre, 



193 

88 

17 

221 

378 

18 

321 

15 

30 

261 

333 

391 

120 

419 

217 

198 

98 

146 

126 

346 

277 

251 

76 



177 

409 

17, 192 

285, 297 

222, 245 

. 199 

82, 85 
57 
57 

179 

143 

113 

150 

. 242, 244 

. 388, 418 

. 227 

Junction 

. 196, 359 
. 173, 174 
271 
105 
256 
136 

83, 91 
165 
195 
115 
260 

15 
215 
271 
269 
208 

98 
113 
117 



Sonlby, 



XXX 



TABLE OF ENGLISH CASES. 



Prentice v. Phillipa, . 

Preston v. Grand Collier Dock Co. 



350 
321 



Price V. Berrington, 

V. Carver, 

t), Griffith, 

V. Price, . 
Pride v. Fooks, . 
Prince Albert v. Strange, 
Prince i'. Heylin, 
Pritchard v. Draper, . 

V. Fleetwood, 
Pritt V. Clay, . 
Prodgers v. Langliam, 
Prosser v. Edmonds, 
Prowse V. Abingdon, 
Pruen v. Lunn, . 
Pulsford V. Richards, 
Pulteney v. Darlington, 

V. Warren, . 
Pulvertoft V. Pulvertoft 
Purcel V. McNamara, 
Pusey V. Desbouvrie, 
Pye, Ex parte, . 
Pym V. Lockyer, 
Pyrke v. Waddingham, 

Quarrell v. Beckford, 
Queen's College, In re, 



176, 183, 303 

125, 253 

77, 88 

183 

63 

213 

233 

413 

353 

189 

146 

54 

276 

406 

176, 177 

. 137 

229, 234, 235 

146, 153 

. 386 

. 96 

80, 98, 104 

98, 104 

. 84 



Rabbett v. Squire, . . .343 
RadclifiFe, Ex parte, . . .293 
Raine v. Cairns, . . . 236 

Rajah, &c., v. E. I. Co., 
Ramsbottom v. Freeman, . . 355 
Randall v. Randall, . . . 245 
V. Russell, ... 60 
Ranger v. Great Western Railway, 
222, 



119 
75 



224 

260 

218 

64 

103 

358 

173 

360 

353 

106, 268, 269 

. 142 



223, 



Ranken v. Harwood, 

V. Huskisson 
Raphael v. Boehm, 
Raven v. Waite, 
Rawson v. Samuel, 
Rawstone v. Parr, 
Raynes v. Wyse, 
Reed v. Harris, . 
Rees V. Berrington, 

V. Keith, 

Reeve v. Attorney-General, . 73 
Reeves v. Baker, . 29, 31, 306 

V. Glastonbury Canal 

Company, . . . 113 
Reg. V. Smith, .... 282 
Reid V. Shergold, . . . 100 
Rendall v. Rendall, . . . 353 
Rennie v. Ritchie, ... 44 
Rex V. Canterbury, Bishop of, . 75 
V. Greenhill, . . . 280 
Reynell v. Sprye, 6, 14, 175, 176, 177 
Reynolds v. Pitt, . . .109 



Rice V, Rice, .... 160 
Rich V. Cockell, ... 93 

Richards, Ex parte, . . . 292 
V. Attorney-General of 

Jamaica. . . 136 

V. Platel, . . .115 
Richardson v. England, Bank of, 

244, 351, 352 



V. Eyton, 
V. Hastings, 
V. Larpent, 
V. Merrifield, 
V. Smallwood, 
Rico V. Gaultier, 
Rider v. Kidder, 
Ridgway v. Roberts, . 
Ripley v. Waterworth, 
Ripon, Earl of, v. Hobart, 
Roberts, Ex parte, 

V. Denny, . 
V. Ebenhart, 
V. Marchant, 
V. Tunstall, 
V. Walker, . 
Robertson v. Lubbock, 
V. Shewell, 
Robinson v. Briggs, . 
V. Byron, . 
V. Geldard, 
V. Governors, &c 



I'. Lamond, 

r. Milne r 

V. Page, 

V. Rosher, . 

V. Wheelwright, 
Rochdale Canal Co. v. King, 
Rochford v. Fitzmaurice, 

V. Hackman, 
Rock V. Cooke, . 
Rocke V. Hart, . 
Rodgers v. Marshall, 

V. Nowhill, . 
Rogers v. Earl, . 
Rolfe V. Peterson, 
V. Rolfe, . 
Rolt V. Hopkinson, 
Rose V. Cunynghame, 
Ross V. Ross, 
Ross's Trust, In re, . 
Rouse' Est., 
Row V. Dawson, 
Rowland v. Morgan, . 
Rowley v. Adams, 
V. Rowley, 
Ruffin, Ex parte, 
Rumford Market Case, 
Rundellv. Murraj-^, 
Russell V. Ashbj', 
V, Jackson, 



136, 138, 263 

6 

387 



189 

241, 322 

, 322 

. 288 

. 147 

. 360 

35, 130 

. 210 

. 245 

. 211 

. 292 

82, 88 

241, 247 

. 399 



62, 



186 
265 
19 
15 
184 
218 
277 



98, 



84 
142, 392 

46 
211 

42 
42, 282 
298 

63 
101 
217 
170 
108 

82 
110 
141 
351 

45 
103 

54 

42 
383 
184 
240, 244 

60 
215 
361 

76 



TABLE OF .ENGLISH CASES. 



XXXI 



Russell 0. Russell, 




123 


Shelley v. Westbrooke, '. 
Shepherd v. Morris, . 




283 
12 


Sadler & Jackson, Ex parte. 




180 


V. Mouls, . 




63 


Sainsbury v. Jones, . 




81 


Sherman v. Sherman, 




227 


St. Asaph V. Williams, 




235 


Sherwood v. Sanderson, 290, 


291, 293 


St. John, Lord, v. St. John, Lady, 45 


Shiphard v. Lutwidge, 




255 


Salisbury v. Hatcher, 




32, 89 


Short V. Lee, 




377 


Salmon v. Cutts, 


61, 184 


V. Mercier, 




6 


V. Randall, . 




212 


Shrewsbury, &c., R. R. v. London, 


Salomons t). Laing, . 




320 


&c., R. R., . 


, 


356 


Salvidge r. Hyde, 




310 


Shuttleworth v. Howarth, 




390 


Salway v. Salway, 




57 


Sidmouth v. Sidmouth, 


33, 102 


Sampson v. Pattison, 




126 


Sidney v. Shelley, 




33 


Samnell f. Howarth, . 




106 


Sieveking v. Behrens, 


20 


5, 206 


Sanders v. Rodway, . 




45 


Silk V. Prime, . 243, 


254, 257 


San don v. Hooper, 




111 


Simmonds v. Leonard, 




245 


Sanford v. Morrice, . 


31 


3, 403 


V. Palles, . 




31 


Saunders v. Amnesly, Lord, 




190 


V. Rose, . 




138 


V. Smith, 




215 


Simonds i\ White, 




271 


Savage i'. Brocksopp, 




21 


Simpson v. Howden, Lord, 




174 


Saville v. Saville, 




289 


V. Vaughn, . 




172 


Sawyer v. Birchmore, 




262 


Simson v. Jones, . 


285, 289 


V. Mills, 




303 


Skeats v. Skeats, 




102 


Say V. Creed, 


25 


1, 261 


Skeeles v. Shearly, . 




130 


Scales V. Collins, 




276 


Skinners' Co. v. Irish Society, 


353 


Scawin v. Scawin, 




102 


Slaney v. Sidney, 




204 


Schneider v. Heath, . 




179 


Sloan V. Cadogan, 




80 


Scholefield v. Heafield, 




253 


Small V. Atwood, 


144, 321 


Schoole f. Sail, 




117 


Smith I'. Beaufort, 




16 


Schreiber v. Creed, . 




152 


V. Clarke, 




177 


Schroder v. Schroder, 




94 


V. Claxton, 




140 


Scoones v. Morrell, . 




89 


V. Clay, . 




228 


Scott V. Beecher, 




265 


V. E. I. Company, . 




8 


V. Broadwood, 




19 


V. Effingham, . 




353 


I'. Dunbar, 




392 


V. Garland, 




145 


V. Jones, , 




255 


V. Hurst, 


31, 132 


Scott V. Xicholl, 




317 


V. Jeyes, . 


243, 354 


Seaborne v. Clifton, . 




162 


V. Keating, 




31 


Sealey v. Laird, 




360 


V. Mules, . 




243 


Seddon v. Connell, . 268 


, 30 


3, 319 


V. \ethersole . 




360 


Seely v. Jago, . 




137 


V. Pincombe, . 




313 


Selby ». Jackson, 




183 


V. Smith, . 




302 


V. Selby, 




275 


Smythe v. Smythe, 




356 


Sempler. Birmingham Railway 


317 


Soltau V. De Held, . 




211 


Seton V. Slade, . 




. 90 


Somerset, Duke of, v. Cookson, 


92 


Shackell v. Macauley, 




310 


Southeast R. R. Co. v. Brogd 


on 


220 


Shaftsbury v. Marlborough, 




55 


Southeastern R. R. Co. r. Sub- 




Shakel v. Marlborough, 




354 


marine Telegraph Co. 




309 


Shalcross v. Dixon, . 




. 157 


South Sea Company v. Wymond- 




Sharp V. Carer, . 




. 355 


sell, .... 




176 


Sbarpe v. Scarborough, 




. 256 


Southey v. Sherwood, 




216 


Shaw V. Borrer, 




. 255 


Sowarsby v. Lacy, 




156 


Ex parte, 




14 


Spain, King of, v. Machado, 




302 


V. Lawless, 




31 


Speer v. Crawter, 




237 


V. Lindsey, 




. 370 


Spence, Re, 


28 


1, 283 


V. Thackray, • 




. 84 


Spencer 1'. Birmingham Railwaj 


r, 218 


Sheddon v. Goodrich, 




93 


Spencer's Case, 




153 


Sheehy v. Muskerry, . 


31 


0, 397 


Spickernell v. Hotham, 




258 


SheflBeld v. Buckingham, Duche 


S3 


Spottiswoode v. Clarke, 




217 


of, ... . 




. 195 


Sproule V. Prior, 




275 



XXXll 



TABLE OF ENGLISH CASES. 



Spry V. Bromfield, . . . 376 

Stables, Re, .... 287 

Stacey v. Elph, .... 37 

Stackhouse v. Barnston, . . 228 

Stafford v. Selby, . . .122 

Stainton v. Carron Co., . . 301 

Stamps V. Birmingham, &c., R.R., 344 

Stanney v. Walmsley, . . 372 

Stanton v. Chadwick, . 9, 17 

I'. Hall, ... 49 

V. Hatfield, . . .391 

Stapilton V. Stapilton, . . 188 

Stapylton v. Scott, ... 84 

Steele v. Stewart, ... 7 

Steflfe V. Andrews, . . _ . 192 

Stephens v. James, . . . 282 

Sterndale v. Hankinson, . . 2j8 

Stevens v. Keating, . . . 218 

Steward's Est., Re, . . .136 

Stewart v. AUiston, ... 90 

V. Graham, . . .360 

V. Stewart, . . 189, 191 

Re, ... . 136 

Stickney v. Sewell, ... 56 

Stiffe V. Everitt, ... 49 

Stikenian v. Dawson, . .176 

Stileman t". Ashdown, . . 130 

Stiles V. Guy, .... 56 

Stillwellr. Wilkins, . . . 354 

Stirling v. Forrester, . . 270 

Stocken v. Dawson, . . 386, 387 

V. Stocken, . . . 287 

Stocker v. Brockelbank, . . 239 

V. Wedderburne, . . 207 

Stockleyt).Stockley, . 189, 190 

Stocks V. Dobson, ... 53 

Stone V. Compton, . . .179 

V. Godfrey, . . .189 

V. Theed, ... 60 

Storer v. Great Western Railway, 83 

Story r. Johnson, . . 231,232 

V. Lennox, . . . 401 

V. Windsor, . . . 153 

Strathmore v. Bowes, . . 180 

Streatfield v. Streatfield, . . 94 

Stretch «. Watkins, . . .287 

Strickland v. Strickland, 275, 340, 392 

Stroud, Re, ... . 192 

Stroughill V. Anstey, . . 157 

Stuart V. Bute, . . . .12 

V. Welch, . . .202 

Stubbs V. , . . , 400 

Stunsbury v. Arkwright, . . 303 
Sturge V. Dimsdale, . . . 277 
Sturgis V. Champneys, . . 48 
Suissa V. Lowther, Lord, . 103, 104 
Sumner v. Powell, . . . 173 
Sutherland v. Briggs, . . 87 

Sutton V. Scarborough, . . 339 
&c. Co. V. Hitchens, . 347 



Sweet V. Benning, . . . 215 
Swinborne v. Nelson, . . 17 

Sykes v. Sykes, . . . .217 

TaflF Vale Company v. Nixon, . 222 

Talbot V. Ford, .... 85 

V. Scott, -. 208, 210, 354 

V. Shrewsbury, . . 282 

Tanner v. Dancey, . . 388, 390 

Taskerv. Small, . . .315 

Tatam v. Williams, . .173, 258 

Tatham v. Wright, . . .250 

Taj'lor V. Barclay, . . . 335 

V. Field, . . .242 

V. Hay garth • . 51, 139 

V. Haylin, . . .226 

V. Heming, . ' • .18 

V. Plumer, . . . 144 

V. Pugh, . . .182 

Re, .... 284 

V. Rundell, . . 12, 15 

V. Settlement, . .136 

V. Salmon. . • . 184, 321 

V. Shepherd, . . . 197 

V. Southgate, . . 400 

V. Taylor, 33, 136, 138, 217 

Tebbs V. Carpenter, . . 63, 64 

Tenham v. Herbert, . . . 200 

Teulon v. Curtis, . . .126 

Thelluson v. Woodford, . 43, 94 

Thetford School Case, . . 71 

Thomas v. Roberts, . . .283 

V. Dering, ... 91 

V. Oakley, . . .210 

Re, ... . 297 

Thompson v. Derham, . 198, 409 

Ex parte, . . . 409 

V. Griffin, . . .287 

V. Harrison, . . 180 

V. Heffernan, . . 185 

V. Percival, . .173 

V. Spiers, ... 54 

V. Williamson, . . 243 

Thornbrough i;. Baker, . 111,112 

Thornett v. Haines, . . .178 

Thornton v. Hawley, . . . 136 

Thorpe v. Jackson, . . . 172 

Thring v. Edgar, , . .338 

Thynne v. Earl of Glengall, 104, 105 

Tickel V. Short, . . .227 

Tidd V. Lister, ... 49, 263 

Timson v. Rarasbottom, . . 161 

Tindal v. Cobham, . . .352 

Tipping D. Clark, . . 11, 14 

V. Power, . . 261, 390 

Titley v. Davies, . . .272 

Todd V. Gee 81 

Toldervy v. Colt, . . .354 
ToUett V. Tollett, . . .100 
Tombs V. Roch, . . 263, 265, 276 



TABLE OP ENGLISH CASES, 



XXXIU 



Toralin r. Tomlin, . . .363 

Tomlinson, Ex parte, . . 292 

V. Harrison, . . 3G0 

Tonkin v. Lethbridge, . . 413 

Tonsou V. Walker, . . .213 

Tooke I'. Hartley, . . .120 

V. Hastings, ... 36 

Tooth V. Canterbury, Dean of, . 317 

Topham v. Lightbody, "^ . . 382 

Toulmin v. Copland,'. . 416, 417 

Toussaint v. Martinnant, . . 269 

Towuley v. Bedwell, . . . 141 

V. Dean, . . . 206 

t'. Sherborne, . . 58 

Townscnd v. Cams, ... 67 

V. Champernowne, . 89 

Re, . . . . 115 

V. Westacott, . . 147 

Townshend Peerage Case, . . 24 

V. Stangroom, 

85, 170, 171, 172 



Travis v. Milne, . 
Tregonwell v. Sydenham, 
Trinity House Corporati 

Burge, 
Trotter v. Trotter, 
Tucker v. Wilson, 
Tuffnell V. Constable, 
Tulk V. Moxhay, 
Tullett V. Armstrong, 
Tullitt V. Tullitt, 
Turner v. Borlase, 

V. Cameron's, kc. 

V. Harvey, 

V. Morgan, 

V. Turner 
Turton v. Benson, 
Twyford v. Trail, 
Twyne's Case, . 
Tyler v. Lake, . 
Tyson v. Fairclough, 



Co. 



Underhill v. Horwood, 
Uniacke, In re, . 
Upjohn I'. Upjohn, 
Urch V. Walker, 
Usborne v. Baker, 



Vandergucht v. De Blaqu 
Vane v. Barnard, 
Vansandeau v. Moore, 
Vansittart v. Yansittart, 
Vaughan, Ex parte, . 

V. Vanderstegan 
Vernon v. Keys, 

V. Thelluson, 
Vice V. Thomas, 
Vickers i'. Cowell, 
Vigers v. Audley, Lord, 
c 



301 
33 



V. 



44. 



5 

383 

120 

106 

152 

46 

143 

317 

114 

178 

231 

287 

180 

387 

145, 147, 151 

45 

. 354 

. 173 
. 37 
, 407 
37, 38 
. 413 



230, 
194, 



. 47 
. 209 
. 321 
. 46 
. 109 
46, 176 
. 177 
, 260 
. 247 
35 
. 414 



Voyle V. Hughes, 
Vuillamy v. Noble, 



Wait, Re, 242 

Wake I'. Conyers, . . . 237 
Walburn v. Ingleby, . . 303, 317 
Waldron v. Sloper, . . . 151 
Wales, Princess of, v. Liverpool, 

Lord, 18 

Walford V. Pemberton, . . 414 

Walker v. Armstrong, . .170 

V. Fletcher, . . .207 

V. Jeffreys, ... 88 

Re, .... 288 

V. Symonds, . . 56, 58, 62 

I'. Wethereil, . . .286 

V. Woodward, . . 64 

Wallace v. Pomfret, . . 105, 106 

Wallwyn v. Lee, . . -160 

Walmsley v. Child, . . .168 

Walsh V. Gladstone, . . .249 

Walsingham v. Goodriche, . 7 

Walter f. Selfe, . . . .211 

Walworth r. Holt, . . 241,322 

Wahvyn v. Lee, . . . .162 

Warburton v. Storr, . . . ^2 

Ward V. Audland, ... 80 

V. Baugh, ... 96 

Warde v. Warde, . . . 6, 7 

Ware v. Polhill, . ... 285 

Warner v. Baynes, . . • 230 

Warren v. Richardson, . . 87 

Wasson v. Waring, . . . 188 

Waterford t;. Knight, . 378, 414 

Waters v. Bailey, ... 60 

V. Groom, ... 61 

V. Mynn, . . .176 

V. Taylor, . . 243, 354 

Watkins v. Cheek, . . .156 

Watts V. Girdlestone, . . 63 

Re, 293 

Way V. Bassett, . . .173 

Wcall V. Rice, .... 105 

r. West Middlesex Water 

Works, . . .201 
Weaver, Re, . . . .199 
Webb V. Dire. Lond. and Ports- 
mouth R. R. . . 84 
V. Manchester and Leeds 

Railway, . . .211 

Re, 292 

V. Shaftesbury, Lord, . 285 
V. Wools, . . .31 

Webber v. Hunt, . . .118 
Webster v. Webster, ... 45 
Wedderburn v. Wedderburn, 62, 246 
Wedgewood v. Adams, . 84, 85 
Welch. Re, . . . .286 

Wellesley's Case . . .326 
Wellesley v. Beaufort, 282, 283, 288 



53, 80 
. 223 



XXXIV 



TABLE OF ENGLISH CASES, 



Wellesley v. Wellesley, 

36, 209, 281, 301, 334, 412 

Wellings v. Cooper, . . . 224 

West V. Reid, . . . .159 

V. Retford, In re, . . 76 

V. Shuttleworth, . . 68 

V. Smith, . . . • . 397 

Westby v. Westby, . . .189 

Westcott V. CuUiford, , .392 

AVestmeath v. Salisbury, . . 42 

Wetherell V. Collins. ' . .115 

Ex parte, . . .124 

Whaley v. Dawson, . . . 310 

Wharton v. Durham, Earl of, 104, 105 

V. Whartqn, . .11 

Whatman v. Gibson, . . .152 

Whealley v. Slade, . . .91 

Wheldale v. Partridge, . . 137 

Whitaker v. Newman, . . 376 

V. Wright, 258, 370, 387 

Whitbread v. Brockhurst, . . 340 

Ex parte, 123, 124, 295, 297 

V. Smith, . . 173 

Whitebread v. Bennett, . . 138 

White V. Cuddon, . . 91, 177 

V. Hillacre, . . . 165 

V. Lisle, .... 376 

V. Warner, . . . 109 

V. White, . . 39, 270 

V. Williams, . . .11 

V. Wilson, . . .377 

Whitehead v. North, . . . 397 

Whitehouse v. Partridge, . . 360 

Whitemarsh r. Robertson, . 59 

Whitmore v. Oxborrow, . . 409 

r. Ryan, . . . 324 

Whittaker, Re, . . . . 292 

Whittingham i'. Thornburgh, . 179 

Whittou, Ex parte, . . . 117 

Whitworth v. Gaugain, . . 149 

V. Whyddon, . . 353 

Wickham v. Gattrell, . .175 

Widdowson v. Harrington, Lord, 65 

Wigsell I'. Wigsell, . . .270 

Wild V. Gladstone, . . .341 

Wilding V. Richards, . . 31 

Wildens r, Arkin, . . . 215 

Wilkins v. Fry, .... 55 

V. Stephens, . . 144 

Wilkinson v. Fowkes, 

r. Henderson, 
Willan V. Willan, 
Willats V. Bushby, . 
Willet V. Winnell, 
Willett V. Blandford, 
Williams v. Chard, . 
Ex parte, . 
V. Jersey, Earl of, 
V. Lambe, . 
V. Lonsdale, 



83, 191, 


415 




173 




383 


'. 147, 


323 




112 


. 246, 


247 




407 




240 


f, 150, 


303 




162 


51, 65 



Williams v. Owen, 
V. Roberts, 
V. Williams, 
Williamson ik Gihon, 
Willis V. Jernegan, . 
Willoughby i'. Willoughby 
Willis V. Slade, . 

V. Stradling, 
Wilmot V. Jenkins, 

V. Pike, 
Wilson V. Beddard, 

V. Cluer, 

Ex parte, 

V. ^Ietcalf, 

V. Moore, 

V. Stanhope 

V. Wilson, 
Wilton V. Hill, . 
Wiltshire v. Rabbits, 
Winch t). Birkiuhead R. R 
Winter v. Anson, 

V. Innes, 
Withy V. Cottle, 
Witter V. Witter, 
Witty V. Marshall, 
Wood V. Abre}', 
I'. Downes, 
V. Griffith, 
V. Hitchings, 
I'. Milner, 
V. Rowcliffe, 
V. Sutcliffe, 
Woodgate i'. Field, 
Woodhouse v. Shepley, 
Woodmason v. Doyne, 
Woodrutfe v. Daniel, 
Woodward v. Millar, 
Woodyatt v. Gresley, 
Woolam V. Hearne, 
Wormald v. De Lisle, 
Worrall v. Jacob, 

V. Jones, 
Wortley v. Birkhead, 
Wrangham, Ex parte, 
Wray v. Steele, 
Wren v. Kirtou, 
Wright V. Atkj-ns, 

V. Howard, 

V. Jones, 

V. Latham, 

V. Lukes, 

V. Morley, 

V. Pilling, 

V. Simpson, 

V. Snow, 

V. Tallis, 

V. Vernon, 
Wrigley v. Swainson 
Wyatt V. Barwell, 
Wyllie V. Ellice, 



45, 



128, 
173, 



192 



. Ill 

. 197 

29, 31, 216 

. 180 

. 227 

52, 163 

. 230 

. 87 

. 251 

53, 160, 161 

377 

119 

114 

119 

62 
322 
170 

46 
161 
212 
129 
385 

83 
143 
282 
187 

54 
400 

10 
399 

92 
211 
372 
187 
400 
308 
177 

62 
163 
303 
170 
364 
162 

75 

35 

58 

31 
392 

21 

25 
351 

49 
399 
273 
176 
216 
413 
181 
155 
281 



180, 



TABLE OF ENGLISH CASES. 



XXXV 



Wythe t'. Henniker, 



264, 275 



Yates V. Hambley, . . .126 
Yonge, Ex parte, . . . 244 
V. Reynell, . 267, 268, 269 
York, Mayor of, v. Pilkington, 200, 204 
Young, Ex parte, . . . 268 



Young V. Keigliley . . 241, 242 

V. Walker, , . .192 

V. Young, . . .172 

Yovatt V. Winyard, . . .210 

Zulueta V. Vinent, . . 196, 356 



TABLE OF CASES 

CITED IN THE AMERICAN NOTES. 



THE PAGES REFERRED TO ARE THOSE BETWEEN BRACKETS [ ]. 



PAGE 
239 

268 



Abbott's Appeal, 
Abercrombie v. Knox, 
Aberdeen Ry. Co. v. Blaikie 

Bros., 183 

Abney v. Kingsland, . , .101 

Abraham v. Plestoro, . .310 

Acheson v. Miller, , . . 268 

Ackla V. Ackla, . . .110 

Acton V. Woodgate, . . .31 

Adams r. Adams, . . . 248 

V. Ames Iron Co., . . 230 

V. Brackett, . . 263, 274 

V. Brown, , . .113 

V. Dixon, . . 205, 257 

V. Fisher, . . .17 

V. Mackay, ... 46 

V. Parker, . . .114 

V. Robertson, . . 168 

V. Stephens, . . . 168 

V. Way, . . . .268 

V. Whiteford, . 196, 351 

Aday v. Echols, . . 77, 91 

Addams v. Tutton, . . . 240 

Addison v. Bowie, . . 96, 287 

Adkins v. Paul, . . . 363 

Adlum V. Yard, ... 95 

Adsit t;. Adsit, . . 94, 96 

Agar V. Fairfax, . . . 229 

Agassiz V. Squire, . . . 185 

Agnew V. Bell, .... 269 

V. Fetterman, . 254, 255 

Agric. Bank »;. "Pallen, . . 270 

Ahearne v. Ilogan, . . .184 

Aiken v. Ballard, . . . 303 

V. Gale, . . . .270 

Aiman v. Stout, . . .183 

Albea v. Griffin, ... 86 

Albergottie v. Chaplin, . . 230 

Aldborough (Lord) v. Trye . 186 

Alden V. Garver, . . . Ill 

V. Holden, . . . 363 

Alderson v. White, . . .Ill 

Aldrich v. Cooper, 257, 263, 270, 272 



PAGE 

Aldrich's v. Hapgood, . . 269 

Alexander v. Fisher, . . 208 

V. Pendleton, . . 157 

t'. Worthington, . 263 

Aleyn v. Belchier, . . . 186 

Alfrey v. Alfrey, . . .343 

Allen V. Allen, . . 48, 402 

V. Board of Freeholders, 211 

V. Burke, .... 77 

V. Centre Valley R. R. . 243 

V. Chambers, ... 86 

V. Coffman, . . . 309 

V. Davison, ... 78 

V. Getts, ' . . .92 

V. Hall, . . . ,231 

V. McCalla, . . .151 

V. McPherson, . . 248 

V. Miller, .... 309 

V. Randolph, . . . 338 

V. Ranson, . . .117 

V. Simons, . . . 317 

V. Wells, . . . .243 

V. Wood, .... 269 

Allen's Estate, .... 86 

Allis V. Billings, . . .182 

Allison V. Allison, . . 248, 364 

Alsberry v. Hawkins, « . . 233 

Alston V. Munford, . . 263, 275 

Ambler v. Norton, ... 94 

Ambrose v. Ambrose, . . 28 

Amelung v. Siekamp, . . 210 

American Academy v. Harvard 

College, .... 67 

Ames r. King, . . . 217,308 

Ancaster (Duke of) v. Mayer, 261, 263 

Ancrum r. Dawson, . . . 361 

Anderson v. Anderson, . . 243 

V. Chick, ... 86 

V. Greble, . . 268 

V. Guichard, . . 355 

V. Hughes, . . 232 

V. Lewis, . . . 336 

V. Neff, , 162, 163, 364 



TABLE OF AMERICAN CASES. 



XXXYll 



Anderson I'. Noble, . . .196 

V. Sajlors, . . 268 

V. Thompson, . . 286 

r. Tompkins, . . 240 

V. SV'ard, . . .402 

V. Wilkinson, . . 205 

Anderton v. Yates, . . . 287 

Andress i-. Miller, . . .243 

Andrew v. Spnrr, . . . 168 

Andrews v. Bell, ... 88 

V. Brown, . , 91, 246 

V. Hobson, . . . 402 

Matter of, . . . 281 

V. Solomon, . . 6 

V. Sparhawk, . . 156 

& Bro. V. Jones, . 48 

Andrew's Heir v. Brown's Adm. 246 

Anketel v. Converse, . . 128 

Annan v. Merritt, ... 86 

Anstice v. Brown, . . 33, 138 

Anthony r. Anthony, . . Ill 

V. Bogers, . . .118 

V. Leftwich, . 77, 304 

Apthrope v. Comstock, 196, 356, 377 

Arendell t-. Blackwell, . . 346 

Arguello v. Edinger, . 86, 87 

Arlin v. Brown, . . . 128 

Armistead v. Ward, . . . 268 

Armitage f. Wickliffe, . 110,373 

Armsby v. Wood, . . . 364 

Armstead v. Hundley, . .179 

Armstrong v. Athens Co. . . 302 

V. Lear, . . .282 

V. Pierson, . . 88 

V. Pratt, . . .402 

V. Ross, . . .128 

V. Stone, . . . 280 

Armstrong's Appeal, . . . 263 

Arnhout, Matter of, . . .290 

Arnold v. Klepper, . . . 211 

V. Mattison, . . .111 

Arnot V. Woodburn, . . . 269 

Arthur v. Arthur, . . . "108 

Artz r. Grove, . . . .111 

Ash V. Daggy, .... 77 

Ashbrook v. Watkins, . .188 

Ashe V. Hale, . . . 196, 356 

V. Johnson, . . . 356 

Ashhurst v. Mill, 

V. Montour Iron 
Ashton V. Atlantic Bank, 
x^stor V. Miller, . 
V. Wells, . 
Astreen v. Flanagan, . 
Atkins V. Chilson, 

V. Kron, . 
Atkinson v. Grey, 

I". Manks, 
Atlantic De Laine Co 



Co., 



153, 



189 

121 

251 

114 

157 

101 

208 

42 

252 

21, 206, 380 

Tredick, 194 



Att.-Gen. v. Bradford Canal, . 211 
V. Corp. of London, 

9, 14, 15, 17 
f. Davey, ... 69 
V. Dean of Windsor . 71 
V. Federal St. Meeting 

House, . . 69 

V. Jollv, . . 65, 69 

V. Sheffleld Gas Con- 
sumers' Co., . 211 
u. Utica Ins. Co., . 211 
V. Wallace, . 65, 67, 69 
I'. Wilkins, 

Attwoodvr. Coe, 
V. Small, 

Atwill V. Ferrett, 

Atwood V. Vincent, 

Auburn Co. v. Douglass, 

Austin V. Baintor, 



Atlantic Ins. Co. v. Lunar, 



If 



Bo\'s, 
Autrey v. Cannon, 
Averiil v. Guthrie, 
t'. Loucks, 
Avery v. Kellogg, 

V. Petton, 
Aymar v. RoflF, . 
Aymer v. Gault, 
Ayres v. Carver, 
V. Husted, 
V. Mitchell, 
I'. Valentine, 
V. Waite, . 
V. Wright, 

Babcock, Matter of, 
Backett i-. Lamb, 
Backhouse v. Patton, 
Backler v. Farrow, 
Badeau v. Rogers, 
Bailey v. Brownfield, 

V. Dean, 

V. Duncan's Rep 

V. Le Roy, 

V. Mj-reck, 

V. Sisson, 

V. Stiles, . . 
Daily v. Burton, 

V. Richardson, 

V. Ryder, . 

V. Wilson, 
Bainbridge v. Owen, 
Baines v. Goldey, 

V. McGee, 
Baird v. Baird, . 
Baker's Appeal, 
Baker v. Backers, 

V. Biddle, 

V. Bradley, 

V. Hathawaj", 

V. Lorillard, 



67, 



162 
4 
. 177 
. 335 
. 128 
. 211 
. 377 
• 246 
. 363 

162, 163 

252, 272 
. 310 
. 319 
. 281 
. 206 

375, 403 
. 272 
. 174 
. 344 
. 115 

310, 314 

. 268 
. 94 
. 254 
. 233 
. 389 

268, 269 
. 3, 19 
. 233 
. 337 

312, 385 
. 320 
. 248 
. 309 
. Ill 
. 303 
10,308,344 
. 118 
10 

251, 310 

241, 240 
. 243 
. 352 
. 227 
. 184 
. 77 
. 285 



XXXVlll 



TABLE OF AMERICAN CASES. 



Baker v. Smith, 


. 


69 


Barron v. Barron, 


33, 45 


V. Vining, 


, 


33 


Barrow v. Barrow, 


. 96 


V. Whiting, 




399 


V. Rhinelander, 


227, 379 


V. Williamson, 3G3, 


37G, 


377 


V. Wadkin, 


42, 51 


Balch V. Onion, . 




113 


Barrs v. Fewkes, 


33 


Baldwin v. Johnson, . 


33, 


24G 


Barry v. Stephens, 


222 


V. Salter, 




84 


Bartholomew v. Yaw, 


. 198 


Baldy v. Brad}-, 




254 


Bartle v. Nutt, . 


. 268 


Ballard v. McKenna, . 


, 


182 


Bartlett v. Bartlett, . 


. 351 


• V. Taylor, 




45 


r. Boyd, 


. 314 


Bait. & Ohio''R. R. v. Wheeling. 




V. Crittenden, 


. 214 


19G, 


35(J, 


3G3 


V. Fifield, 


. 417 


Bank v. Adger, . 




2U9 


V. Gale, 


. 363 


V. Anderson, . v 




110 


V. Gouge, 


. 233 


V. Dubuque, 




61 


Bartlcy v. Bartley, 


. 16 


V. Seton, . 




312 


Bascorab v. Albertson, 


65 


Bank of America v. Pollock, 




317 


Basset v. Nosworthj', 147, 1 


53,157,162 


Auburn v. Roberts, 




144 


Basye v. Beard, . 


197, 418 


Columbia v. Hagner 


. 


88 


Batchelder v. Wendell, 


. 312 


Kentucky v. Schuylkill 




Bateman v. Latham, . 


. 139 


Bank, 


412 


418 


Bates V. Delavan, 


. 153 


Kentucky v. Vance, 




272 


V. Johnson, 


. 165 


Monroe v. Schernier- 




V. Norcross, 


. 153 


horn. 


19G 


356 


Batty V. Hill, . 


. 217 


Newbury v. Eastman, . 


151 


Baumgardner v. Guessfielc 


, . 33 


U. S.r. Beverly . 


261 


3G3 


Baxter v. Costin, 


61 


U. S. V. Biddle, . 


307 


335 


V. Farmer, 


19, 23 


U. S. V. Carroll, . 




315 


Bayard v. Ches. & Del. Co. 


, . 363 


U. S. V. Shultz, . 




304 


Bayler v. Commonwealth, 


54 


IT. S. V. Winston, 




269 


Bayley v. Greenleaf, . 


. 128 


Utica V. Mersereau, 


G8, 


344 


Baylies v. Bussy, 


. 121 


Westminster v. Whyte, 


HI 


Baynton v. Barstow, . 


. 346 


Bankhart v. Houghton, 




194 


Bays V. Beard, . 


' . 197 


Bankhead v. Alloway, 




227 


Beach v. Beach, 


. 309 


Bankhead's Trust, 




28 


V. Cooke, 


. 113 


Banks i'. May, . 




78 


V. White, 


. 317 


V. Phelan, 




G5 


Beall V. Blake, . 


. 339 


Banta v. Moore, 




335 


V. Fox, 


G5 


Baptist Ass. v. Hart's Ex'rs., 




65 


Beals V. Cobb, . 


. 317 


Barber v. Barber, 




47 


V. Lee, 


. 182 


Barham v. Gregory, . 




313 


Bean v. Coleman, 


. 202 


Barker v. Bell, . 




153 


V. Valle, . 


79, 86 


V. Belknap, 




402 


Bear v. Smith, . 


. 262 


V. Swain, 




203 


Beard v. Hubble, 


. 168 


Barkj-at v. Ellis, 




268 


Beattie v. Johnson, 


. 316 


Barnard v. Jewett, 




33 


Beatty i'. Byers, 


. 137 


V. Moore, 




110 


V. Kurtz, 


321 


Barnes' Appeal, 




34 


V. Smith & Thomps 


on, . 21 


Barnes v. Lee, . 




110 


Beaty v. Beaty, . 


. 194 


V. 5[cGee, 




61 


Beaufort v. Collier, . 


44 


Barnett v. Barnett's Ex'rs., 


13G 


188 


Beavan v. Carpenter, 


25 


r. Reed,- 




270 


Beavers v. Smith, 


. 233 


V. Spratt, 


id 


194 


Beck V. Beck, 


. 333 


V. Woods, 




310 


V. Simmons, 


. 174 


Barney v. McCarty, . 




151 


Becker v. Kehr, . 


. 270 


V. Myers, 




270 


Beckwith v. Howard, 


. 207 


Barnhart r. Greenshields, . 




151 


V. Kouns, . 


84 


Barnsdale v. Lowe, . 




25 


Bective v. Hodgson, . 


. 138 


Barr v. Haseldon, 




309 


Beddow v. Dewitt, 


. 270 


Barringer v. Burke, . 




413 


Bedell v. HoflPman, 


. 202 



TABLE OF AMERICAN CASES. 



XXXIX 



Beebe v. Young, 


. 


177 


Beech r. Keep, . 




80 


Beegle v. AVentz, 




33 


Beekraan r. The People, 


. 


69 


Beers v. Reynolds, 


. 


228 


t'. Spooner, 




389 


Beeson v. Beeson, 


, 


61 


Bein t'. Heath, . 


, , 


313 


Belcher v. Belcher, 


, 


84 


Belknap v. Sealv, 




177 


Bell V. Bell, 


. 


48 


V. Fleming, 




110 


V. Jasper, 


, 2G9 


364 


V. Kellar, 




46 


V. Mayor of N. York 


113, 118 


233 


V. Newman, 




243 


V. Pomeroy, 




20 


V. Price, 




193 


r. Schrock, 


. 


317 


V. Thompson, 




91 


V. Twilight, 


. 151 


153 


V. Williams, 




198 


V. Woodward, 




310 


Bellamy v. Sabine, 


". 157 


177 


Bellas V. McCarty,' . 


159, 160 


162 


Beller r. Jones, . 




183 


Bellinger v. Shafer, . 




285 


Belloat i\ Morse, 




303 


Bellows V. Dewy, 




268 


V. Stone, 


85, 168 


338 


Beman v. Rufford, 




212 


Bemis v. Upham, 




211 


Bending tj. Bending, . 




94 


Benedict i'. Lynch, . 


8 


I, 88 


Benhani v. Keane, 




153 


Bennett v. Buchanan, 




270 


V, Butterworth, 




118 


V. Fulmer, . 




34 


V. Smith, 




77 


Benson v. Leroy, 


254, 259, 


379 


Bent V. Yardley, 




309 


Bentley v. Cowman, . 




333 


V. Dock Co., . 




231 


V. ilackey, . 




171 


V. Phelps, 




399 


V. Whittemore, 




168 


Benyon i'. Nettlefield, 




320 


Benzein v. Lenoir, 




151 


Beresford v. Drivers, . 




12 


Bergen v. Bennett, 




121 


Berger v. Dutf, . 




57 


Bernard v. Minshull, 




31 


Berry v: Cox, 




84 


V. Rogers, 




297 


V. Williamson, . 


40, 42, 


313 


Besley r. Lawrence, . 




272 


Best V. Blackburns, . 




177 


V. Schermier, 




114 


V. Stow, 




85 


Bethca v. McColl, 




287 



ada Co., 



Welsh, 



Bethell i'. Casson, 
V. Sharp, 
Bethume v. Wilkins 
Betts V. Betts, . 
V. Gunn, . 

V. Menzies, 

V. Wirt, . 
Beverly v. Brooks, 
Bibb V. Martin, . 
V. McKinley, 
V. Smith, . 
Bicknell i'. Bicknell 
Biddle v. Ash, . 
Biddulph & Poole's Trusts, Re, 
Bigelowr. Hartford Bridge Co., 
V. Majnard, 
V. Wilson, 
Biggs V. Kouns, 
Bill V. The Sierra Ne^ 
Billage v. Southee, 
Billington's Appeal, 
Lessee v. 
Bingham v. Yeomans 
Bingham's Appeal, 
Binus V. Parr, . 
Birchettr. Boiling, 
Bird V. Styles, . 
Birds V. Askey, . 
Bishop V. Day, . . 
r. Breckles, 
Bispham v. Price, 
Bitzer v. Hahn, . 
Black t'. Black, . 

V. Bush, . 

V. Erwin, 

V. Lamb, 

V. Scott, 

V. Shreve, 
Black's Appeal, 
Black River Bank v. 
Blackeaey v. Dufau, 

V. Ferguso 
Blackett v. Bates, 
Blackie v. Clark, 
Blagrave v. Routb, 
Blain v. Harrison, 
Blair v. Bass, 

V. Bromley, 
Blake v. Hey ward, 

V. Langdon, 
Blakesley v. Johnson, 
Blauchard v. McDougal, . 

V. Tyler, . 
Blauvett v. Akerman, 
Bledsoe i'. Gumes, 
Bleight V. Bank, 
Bleukinsopp v. Blenkinsopp, 
Blithe r. Dwinal, 
Blodgett V. Wadhams, 
Blomfield v. Eyre, 



9, 12 

33 

210 

310 

168 

6 

136 

270 

268 

281 

21 

123 

211 

290 

211 

193 

113 

205 

194 

184 

285 

151 

363 

100 

351 

83 

363 

275 

270 

241, 243 

188, 192 

. 103 

. 337 

. 243 



, 377 

. 254 

35, 377 

. 243 

. 268 

. 243 

363, 392, 393 

77,81 

. 177 

. 184 

. 234 

33, 111 

. 177 

. 157, 162 

222 

. 198 

. 86 

. 151 

. 61 

. 128 

. 136 

180 

115 

110 

281 



199, 
'age. 



xl 



TABLE OF AMERICAN CASES. 



Blondheim v. Moore, 
Bloodgood V. Brueu, 
V. Kane, 
V. Zeily, 
Blount V. Garen, 
Blow V. Gage, 
Blow V. M.aynard, 
Bluck V. Galsworthy, 
Blue V. Patterson, 
Blyliolder v. Gilson, 
Blystone v. Blystone, 
Boaler v. Mayor, 
Boardman v. Meriden 
Bobbitt V. Flowers, 
Bodine v. Glading, 
Boerum v. Sclienck 



Bogardus v. Trinity Church, 338, 339 



15 



196 



Bogert V. Bogert, 
V. Hertell, 
Boggs V. Anderson, . 
V. Chambers, . 
V. Varner, 
■Boiling V. Boiling, 
V. Carter, 
Bollinger v. Chouteau 
Bollo I'. Navarro, 
Bolser v. Cushman, . 
Bolton V. Gardner, 
Bolware v. Bolware, . 
Bond V. Hendricks, . 
V. Little, . 
V. Zeigler, 
Bonney v. Bonney, 
Bonsall's Appeal, 
Boone v. Boone, 
V. Chiles, 
Booth V. Albertson, . 
V. Barnum, 
V. Booth, . 
V. Sineath, 
V. Stamper, 
Borah v. Archer, 
Bostock V. Floyer, 

V. North Stafford R. R 
Co., 

Boston Co. V. Worcester R. R 
Corp., 
Iron Co. V. King, 
Water Power Co. v. Gray 
Bostwick I'. Atkins, . 
Ex parte, . 
Matter of, . 
Botefeur v. Wyman, . 
Botsford V. Burr, 
Bouck V. Bouck, 
Boughton V. Allen, . 
V. Boughton, 
V. Phillips, 
Bouldin v. The Mayor of Balti- 
more, . . . . . 



11 



352 
254 
337 
227 
335 
3G3 
233 
6 
248 

33 
174 
268 
217 
269 
82, 88 

61 



17 
138 
1, 153 
230 
153 
227 
157 
115 
230 
235 
338 
66 
356 
199 
251 
335 
285 
230 

162, 304 
313 
151 

176,303 
. 287 

310, 346 

233, 315 
61 



211 

303 
118 
193 
184 
286 
287 
227 
33 
309 
312 
263 
389 

196 



Bowditch V. Green, . 


. 269 


Bowen v. Johnson, 


. 222 


I'. Waters, 


84 


Bowers v. Keesechcr, 


. 310 


V. Oyster, 


. 123 


Bowie V. Berry, . 


. 233 


Bowles V. Woodson, . 


. 84 


Bowman v. Bates, 


177, 178 


V. Irons, 


77 


V. Walker, . 


. 157 


Bowman's Appeal, 


. 285 


Box V. Barrett, . 


. 94 


Boyce v. Colclough, . 


. 249 


V. Coster, 


. 246 


V. Smith,. 


. 183 


Boyd V. Brisban, 


. 400 


Ex parte, 


. 28 


V. Glass, . 


. 282 


V. Harris, 


. 115 


i\ Hawkins, 


. 61 


V. Iloyt, . 


309, 310 


V. McDonough, 


. 268 


v. McLean, 


. 33 


V. The Chesapeake 


::;o., . i98 


Boye V. Davis, . 


. 79 


Boykin v. Ciples, 


. 313 


Boynton v. Boynton, . 


, 404 


Boyse v. Rossborough, 


. 249 


Brace v. Wehnert, 


83 


Bracken v. Hambrick, 


86 


V. Kennedy, . 


. 240 


V. Miller, 


. 157 


Brackenridge t;. Holland, 


57, 61 


Bradberry v. Keas, . 


. 174 


V. Manchester, 


&c.. 


R. R. Co., 


. 217 


V. White, . 


85 


Bradford v. Forbes, . 


, 261 


V. Geiss, 


. 344 


V. Greenway, 


46 


V. Kents, 


94, 96 


V. Romney, 


. 168 


V. Union Bank, 


. 85 


Bradish v. Gibbs, 


. 99 


Bradley v. Chase, 


188, 392 


V. Chester Valley 


R. R. 


Co., 


. 121 


V. Norton, 


. 217 


V. Root, 


. 364 


Bradsher v. Lee, 


. 211 


Brady v. Cabitt, 


. 106 


V. McCoskcr, . 


. 249 


r. Waldron, 


114, 208 


V. AVeeks, 


. 211 


Bragg V. Massie's Ex'rs., . 


. Ill 


V. Paulk, . 


. 28 


Braham v. Bustard, . 


. 217 


Brailey v. Sugg, 


. 269 


Brandon v. Brandon, 


. 397 


Brant's Will, 


. 263 



TABLE OF AMERICAN CASES. 



xli 



Brashear r. Macey, . 


. 208 


Brookfield v. Williams, 




233 


Brasher r. Van Cortlandt, 


. 297 


Brooks V. Byara, 


8, 344 


392 


Brashier v. Gratz, 


88 


V. Dent, . . 83, 263 


351 


Bratt V. Bratt,^ . 


. 128 


t». Ellis, . 




33 


Braxton v. Coleman, . 


. 233 


V. Fowle, 




33 


V. Lee, . 


. 51 


I'. Gibbons, . 




335 


Brazee and Others v. Lancaster 


t'. Harris, 




268 


Bank, .... 


162, 163 


r. Marburry, . 




31 


Brazleton v. Brazleton, 


. 151 


r. StoUey, . 




20 


Breckenridge v. Brooks, . 


. 118 


V. Thomas, . 




3C3 


V. Ormsby, . 


. 182 


V. Wheelock, 


8 


3, 86 


Breden r. GilHland, . 


. 263 


Broome v. Curry, 




137 


Breuan v. Preston, 


. 233 


Broughton v. Broughton, 




61 


Brendle v. Germ. Reformed Con- 


V. Hutt, . 




189 


gregation, 


69 


Brower v. Fisher, 




290 


Brewer v. Brewer, 


81, 8G 


Brown's Appeal, 




208 


t'. Franklin Mills, . 


. 269 


Brown I'. Armistead, . 




168 


V. Wilson, 


. 77 


V. Aspdcn, 




399 


Brewster v. City of Newark, 


. 356 


V. Brown, 




92 


V. Hanimet, 


242, 243 


V. Budd, . 




153 


V. Hodges, . 


. 196 


V. Bulkley, 




363 


Briant v. Reed, . 


. 203 


V. Caldwell, . 




94 


Brice r. Brice, . 


. 183 


V. Carson, 




111 


Brickell v. Jones, 


. 198 


V. Combs, 




29 


Bridenbecker r. Lowell, . 


. 33 


V. Concord, 




69 


Bridge v. Bridge, 


. 80 


V. Duchosne, . 




213 


Bridgen r. Carhartt, . 162 


163, 389 


V. Dysinger, 




33 


Bridges v. Wilkins, . 


. 44 


V. Gilliland, . 




77 


t'. Winters, . 


. • 268 


V. HaflF, . 




360 


V. Wood, 


. 45 


V. Higginbotham, 




239 


Bridgraan v. Bridgman, 


. 192 


V. James, 


263 


275 


Briesch v. McCauley, 


198, 363 


V. Jones, . 




31 


Briggs r. Penny, 


29,31 


V. Kelsey, 




65 


V. Planter's Bank, . 


. 272 


V. Kennedy, 




169 


Ex parte. 


. 174 


r. Lamphear, . 




191 


Bright V. Hutton, 


. 239 


V. McDonald, . 


257 


309 


V. Legerton, . 


. 62 


V. Nickle, 


111 


123 


Brill V. Stiles, . 


. 331 


V. Peck, . 




182 


BrinkerhoflF v. Brown, 


303, 310 


V. Pitney, 




92 


V. Marvin, 


. 272 


t». Ray, . 




269 


r. Thallhiraer, 


. 121 


tj. Ricketts, 92, 2: 


8,316 


320 


Brinnan v. Brinnan, . 


. 27 


V. SiriTons, 




270 


Brinson v. Thomas, . 


. 269 


V. Simpson, 




128 


Briscoe v. Power, 


.♦270 


V. South worth, 




23 


Brittin v. Crabtree, . 


. 363 


V. Stewart, 


in 


356 


Britton v. Lewis, 


. 61 


V. Speyers, 




175 


V. Updyke, • 


. 270 


V. Swann, 




198 


Broadbent v. State, . 


19 


t'. Van Dyke, . 




228 


Broadus r. Rosson, . 


. 286 


V. Vanlier, 




128 


Brock V. Barnes, 


. 184 


t'. Winans, 




356 


V. Cook, . 


. 86 


V. Wood, . 




162 


Brockway r. Copp, . 


. 335 


V. Worcester Bank, 




113 


Brogden v. Walker, . 


183, 191 


Brown's Case, . 




285 


Brolasky v. Gally's Ex'rs., 


, 136 


Browne, Re, 




280 


Bromley v. Elliott, 


. 239 


Brownell v. Curtis et al.. 




334 


Bronson v. Cahill, 


. 82 


Brubaker v. Okeson, . 




106 


V, La Crosse Railroad 


Bruce v. Burdet, 




220 


Company, 


. 321 


r. Edwards, 




268 


Brook V. Brook, 


. 30 


V. Smith, 




153 


Brooke f. Berry, 


177, 183 


Bruch V. Lantz, 


61 


156 



xlii 



TABLE OF AMERICAN CASES, 



Bruen v. Brucn, . 

V. Crane, . 

V. Hone, . 
Bruin v. Knott, . 
Brumagin v. Chew, . 
Brunswick (Duke of) v. D 

Cambridge, . 
Brush V. Vanderbergh, 

V. Ware, . 
Bruton v. Rutland, . 
Bryan i'. Blythe, 

V. Ilickson, 
Bryant t'. Crosby, 
Bryant's Ex'rs. v. Boothe, 
Bryson v. Peak. . 
Buehan v. Sumner, . 
Buclianan v. Matlock, 
Buck I'. Hair, 

V. HoUoway, 

Mt. Co. V. Lehigh Co 

V. Pike, 

V. Spofford, 

V. Swazey, 

1'. Winn, . 
Buckles »). Lafferty, . 
Buckley v. Barber, 

V. Buckley, . 
V. Corse, 
Buckmaster v. Thompson, 
Budd I'. Busti, . 
Buell V. Buckingham, 
Buffalo, &c., R. R. Co. v. I 

SOD, 

Buffalow V. Buffalow, 
Buford V. Francisco, . 
Bugbee v. Sargent, . 
Building Association v. Co 
Buist V. Dawes, . 
Bulkley v. Bulkley, . 

V. Van Wyck, 
Bull V. Bull, 

V. Schubcrth, 
Bullard v. Bowers, 
Bullen V. Sharp, 
Buller V. Dunn, . 
Bullock V. Adams, 

V. Boyd, 
Bulows V. Committee of 0' 
Bumpass v. Plainer, . 
V. Webb, . 
Bunker V. Locke, 
Bunn. Ex parte, 
Bunnell v. Read, 
Burbridge, Re, . 
Burch V. Coney, 
Burden v. McElmoyle, 

V. Stein, 
Burgess v. Burgess, . 

V. Smith, 
Burhans v. Burhans, . 



ke of 



)09, 



87 
243, 



33, 363, 



246, 
195, 



amp- 
183, 



31, 



226, 
Neall, 



230, 



335 
31X 
191 
287 
397 

345 

23 
251 
310 
310 
197 
111 
179 
, 88 
246 
248 

61 
153 
211 

33 
268 
389 
246 

61 
246 
263 
346 

77 
128 

Gl 

33 
310 
360 
310 
272 

96 
303 
363 
254 
239 
233 
239 
286 
309 
227 
194 
151 
193 
208 
364 
314 
297 
334 
228 
208 
217 
198 
312 



Burk V. Chrisman, 
Burke v. Seeley, 
V. Smith, 
Matter of, 
Burlingame v. Ilobbs 
Burn V. Poaug, . 
Burnap v. Wight, 
Burnet v. Denniston, 
Burnett v. Sanders, 
Burnham v. Kempton, 
Burns v. Huntingdon Bank, 

V. Taylor, 
Burnside v. Merrick, 
Burpee v. Smith, 
Burr, Matter of, 
V. McEwen, 
V. Sim, . 33, 137, 
V. Smith, . 
Burrows v. McWhann 
V. Miller, 
V. Ragland, 
Burr's Executors v. Smith 
Burrus v. Roulhac, 
Burt V. Cassedy, 
V. Herron, . 
V. Wilson, 
Burton v. Black, 

V. Rutland, 
V. Wiley, 
Burtus V. Tisdall, 
Burwell v. Cawood, 

V. Mandevill 
Busbee v. Littlefield, 
Bush V. Cooper, 
V. Golden, 
V. Stamps, 
Butler I'. Ardis, . 
v. Burkey, 
V. Catling, 
V. Durham, . 168, 
I'. Elliott, 
V. Haskell, 
V. Hicks, . 
^ V. O'Hear, 
V. Spann, 
V. Stevens, 
V. Viele, . 
Butman i'. Porter, 
Butts V. Genung, 
Bybec v. Tharp, 
Byers v. Clanahan, 



Cabeen v. Gordon, 
Cadbury v. Duval, . 141 
Cadwalader v. Montgomery 
Cadwalader's Appeal, 
Cady V. Potter, . 
CafFey v. McMichael, . 
Cain V. Warford, 
Calder v. Chapman, . 



. 269 

77 

. 346 

. 287 

. 220 

. 307 

. -361 

. 113 

. 389 

. 312 

. ^69 

. 128 

. 24G 

. 334 

. 292 

61 

138, 139 

65 

. 269 

. 400 

. 248 

69 

. 128 

. 153 

. 31 

128, 169 

. 202 

. 230 

. 198 

. 243 

316, 323 

, 241 

. 363 

. 110 

153 

. 268 

. 226 

. 269 

344, 363 

303, 309 

. 364 

79, 174 

59 

84 

310 

.], 153 

154 

78 

310 

286 

269 



156, 254 

. 110 

61 

168, 202 
. 286 
. 183 
. 156 



15] 



TABLE OF AMERICAN CASES. 



xliii 



Caldecott i-. Griffith,. 


. 239 


Caldwell v. Blackwood, 


. 314 


V. Knott, 


. 211 


V. Stileraan, 


. 241 


V. Taggart, . 


. 312 


V. Van Vlissenge 


n, . 212 


V. Williams, 


18, 194 


Calkins v. Evans, 


. 363 


V. Lang, 


. 45 


Callan v. "Watham, 


. 363 


Calloway v. Witherspoon, 


84,, 183 


Callum V. Emanuel, . 


. 117 


Calvin v. Wiggam, . 


. 208 


Calvit r. Markham, . 


. 240 


Calwell I'. Boyer, 


20, 231 


Camblatt v. Taperv, . 


. 241 


Camden R. R. v. Stewart, . 


. 304 


Cameron v. Mason, 


. 128 


Cammack v. Johnson, 


. 243 


Camp V. Bates, . 


. 208 


V. Grant, . 


. 243 


Campbell v. Baker, . 


. 268 


f. Baldwin, 


. 128 


V. Campbell, 


. 104 


V. Foster, . 


. 42 


V. Johnson, 


. 61 


V. McLain, . 


61 


V. Mesier, . 


267, 319 


V. Miller, . 


. 62 


V. "Western, 


. 192 


I'. Whittingham, 


. 179 


Campion v. Kelley, . 


. 346 


Canal Co. v. Clark, . 


. 217 


f. Railroad Co. 


. 303 


Canedy v. Marcy, 


. 168 


Canfield v. Morgan, . 


. 206 


V. Sterling, . 


. 389 


Cannaday r. Shepherd, 


. 84 


Cannon v. Norton, 


. 20 


Canton Co. r. Railroad Co 


., 77, 196 


Cape Sable Co.'s Case, 


. 252 


Caphart r. Huey, 


. 364 


Caplinger v. Stokes, . 


33, 184 


Capnert'. Flemington Minii 


igCo. 508 


Carberry v. Tennehill, 


84 


Carder v. Commissioners, 


94 


Carey r. Callam, 


. 33 


V. Ector, . 


. 346 


f. Hillbouse, . 


. 312 


V. Hoxey, 


312, 320 


V. Jones, . 


. 344 


r. Smith,. 


. 346 


Carlisle v. Stephenson, 


. 208 


Carman r. Watson, . 


. 363 


Carmichael v. Browder, 


. 309 


f. Hughes, 


. 287 


1". Reed, . 


. 309 


Carnall v. Wilson, 


. 108 


Carneal v. Wilson, 


. 344 


Carneal's Heirs v. Dav, 


. 303 



83 
363 
231 
110 
111 
128 
150 
329 
128 
157 
259 
254^ 255 

42 
310 
3j0 

45 
65, 69, 309 



Carpenter v. Benson, . . 13 

V. Bower, . . .114 
V. Hall, . . . 309 
t'. Koons, . . . 270 
V. Mutual Safety Ins 

Co., . 
V. Prov. Ac, Ins. Co. 
V. Schermerhorn, 
V. Simmons, 
V. Snelling, 
Carr v. Hobbs, , 
V. Wallace, 
Carradine r. O'Connor, 
Carrico v. Farmers' Bank, 
Carrington v. Brents, 
V. Didier, 
V. Manning, 
Carroll v. Renich, 

V. Roosevelt, . 
Carson r. Coleman, . 

V. Murray, 
Carter v. Balfour, 

V. Carter, 45, 49, 111, 162, 233 

V. Jones, 

V. Jordan, 

V. Longworth, 

V. RoUand, 

V. Sims, . 

V. Taylor, 

V. Thompson, 

V. Treadwell, . 

V. Wolfe, 

Cartwright v. Clark, . 

Caruthers v. Humjihreys, 

Carver v. Miller, 

Cary v. Folsom, 

Case V. Abeel, . 

V. Carroll, 

Casler v. Thompson, 

Cassidaj- v. McDaniel, 

Castleman v. Veitch, 

Caston V. Caston, 

Catching v. Terrell, . 

Gates V. Woodson, 

Catlin V. Valentine, . 

Caton V. Caton, 

V. Lewis, 

V. Willis, 

Cauffman v. Cauffman, 

Cauley v. Lawson, 

Cecil Bank v. Snively, 

Center v. P. & M. Bank, . .153 

Central Bridge r. Lowell, . . 211 

Chadoin v. Magee, . . .194 

Chadwick V. Turner, . . 153 

Chaires v. Brady, . . .112 

Chalfant v. Williams, . . 108 

Chalmers v. Chambers, . . 309 

Chamberlain v. Gardner, . .121 

Chamberlayne r. Temple, . . 270 



317 

19 

336 

286 

129 

114, 230 

61 
309 

05 
403 
110 
208 
270 
57, 61 
314 

80 
317 
335 

96 
210 
182 
211 

86 

14 
303 
,97 
309 



230, 



xliv 



TABLE OF AMERICAN CASES. 



Chambers v. Crabbe, 
V. Mauldia, 
V. Tulane, 

Cbamness v, Crutchfield 

Champlia v. Champlin, 
V. Layton, 

Champney v. Cooke, 

Champneys v. Buchan, 

Chance i'. McWhorter, 
I'. Teeple, 

Chandler v. Dyer, 

V. Fillet, . 
V. Goodrich, 
V. Moulton, 

Chaney v. Smalhvood, 

Chant V. Brown, 

Chapin v. Cram, 
V. Weed, 

Chaplain v. Givens, . 

Chapline v. Moore, . 

Chapman v. Chapman, 
V. Esgar, 
V. Hamilton 



180 

38 

84 

' 168 

8, 45 

168 

115 

303 

128 

21 

162 

58 

231 

61 

281 

6 

110 

61 

37 

287 

23, 124, 309 

. 257 

150, 272, 314, 

318 

V. Hughes, . .111 

Chappedelaine v. Dechenaux, . 227 
Chappell V. Allen, . . . 110 
Charles R. Bridge v, Warren 

Bridge, . 
Charnley v. Hansbury, 
Chase v. Abbott, 

V. Lockerman, 
V. Manhardt, . 
V. Series, 
Chase's Case, 
Chastain v. Smith, . 
Cheale r. Kenward, . 
Cheesbrough v. Millard, 
Cheescborough v. Greene 
Cheever i'. Perley, 
Cherry v. Belcher, 

V. Stem, 
Chesapeake & Ohio Co. v. Young, 

210,378 
Chesson v. Chesson, . 
Chester v. Greer, 
Chesterfield v. Janssen, 
Cheswell v. .Chapman, 
Chew I'. Barnett, 

V. Farmers' Bk. of Maryland, 6, 7 
V. Nicklin, . . .136 
Chewing v. Singleton, . 167, 168 
Chichester v. Marquis of Donegal, 10 
Child V. Brace, .... 61 
V. Burton, . . . 128 

Chilton V. Braiden's Adm'tx, . 128 
Chiswell V. Morris, . . . 23'3 
Choteau v. Jones, . . . 153 
Chouteau v. Burlando, . .115 
Christ V. DiflFenbach, . 106, 168 



. 376 

86 

. 115 

263, 275 
. 363 
. 310 
. 335 
86 
78, 83. 

270, 272 
. 268 
. 115 

320, 363 
. 210 



227 
250 
176 
231 
162 



11 



Christean v. Ellis, . . 240, 243 
Christler's Exr's. v. Meddis, . 136 
Christmas v. Mitchell, . . 290 
Christ's Hospital v. Grainger, . 67 
Christy v. Barnhart, ... 86 
Chubb V. Peckham, . . .77 

Church V. Sterling, ... 33 
Churcher v. Guernsey, . . 151 
Churchill's Heirs v. Aiken's Adm'rs, 61 
City Bank v. Bangs, . . .203 
City Council v. Page, 151, 157, 224 
City of Phila. v. Davis, 94, 95, 97 
I'. Girard's Heirs, 65 
City of Rochester v. Curtiss, 
Clabaugh v. Byerly, . 
Clack V. Carlon, 
Clagett V. Hall, 
Glamorgan v. Guisse, 
Clancy i'. Craine, 
Clanricarde v. Henning, 
Clapp V. Thaxton, 

V. Rice, . 
Clark V. Beach, 
V. Bundy, 
V. Burnham, . 
V. Condet, 
V. Davis, 
V. Garfield, 
V. Hackett, 
V. Henry, 
V. Henshaw, 
V. Hilton, 
V. Hunt, . 
V. Long, . 
V. Malpas, 
V. Partridge, . 
V. Phelps, 
V. Reed, . 
V. Saginaw Bank, 
V. White, 
V. Wilson, 
Clark's Adm. v. Van Reimsdyk 

Appeal, 
Clarke v. Clayton, 

V. Dutcher, . 
V. Franklin, . 
V. Gilbert, 
V. Lott, . 
V. Reins, 
Re, 
Clarkson v. De Peyster, 

V. Morgan, . 
Clason V. Morris, 
Claussen v. La Franz, 
Claj' & Craig v. Hart, 
t'. Turner, 
V. Wren, . 
Clayton v. Bussey, . , 
V. Freet, 
V. Hlingsworth, 



128 



211 
150 

Gl 
350 
310 
334 
184 
416 
209 
256 

23 

33 

1, 112 

335 

56 
363 
111 
263 

33 
129 
312 
168, 133 
106 
335 
392 
339 
211 
241 
363 
208 
231 
188 
139 
239 

78 

77 
286 
302 
157 
269 

33 

92 
174 
117 
168 
168 

83 



TABLE OF AMERICAN CASES. 



xlv 



Clayton v. Thompson, 
Clayton's Case, . 




3G3 
221 


Clearley v. Babcock, 




1G8 


Clegett V. Kilbourne, 
Clcghorn v. Insurance Ba 


nkof 


239 


Columbus, 




243 


Cleland v. Gray, 




399 


Clements v. Bowes, . 




319 


V. Moore, . 




3G3 


Clery's Appeal, 
Cleveland v. Cit. Gas Co , 




2G3 
211 


Clifton V. Davis, 




187 


V. Livor, 




197 


Climer v. Ilovey, 
Clive V. Carew, 




85 
3G3 


Cloud V. Hamilton, . 




17 


Clowes V. Beck, 




393 


Clute V. Potter, 




198 


Coats V. Robinson, . 




46 


Cochran t". Rison, 




418 


Cochrane v. Willis, . 




188 


Cocke V. Evans, 


3l'o, 


399 


V. Phillips, 




233 


V. Trotter, 




3G3 


Cockell V. Taylor, . 




174 


Cockrell v. Warner, . 




402 


Cocron v. Middlcton, 




315 


Coder v. Huling, 




33 


Coe V. Turner, , 




310 


V. Winniplseogee Man 


af. Co. 


211 


Coffee V. Newsom, 




356 


V. Ruffin, 


61, 


174 


Coffeen v. Brunto, 




217 


V. Brunton, 




217 


CoflSng V. Taylor, 




168 


Cogswell V. Cogswell, 
Coil V. Pittsburgh College 




261 
177 


Colby t'. Kenniston, . 
Colclough V. Boyse, . 




153 
249 


Cole Co. V. Anghey, . 




336 


Coleman v. Barnes, . 




310 


V. Gage, 


19G 


356 


V. Mellersh, 




226 


V. Rose, 




363 


V. Wooley, . 
Coleman's Case, 




4G 
290 


Appeal, . 
Coles and Others, Exr's. v. 


. 90 
Bowne, 85 


V. Coles, . 




389 


V. Raymond, 




21 


I'. Sims, . 




152 


V. Trecothick, . 




Gl 


CoUett V. Morrison, . 




160 


Collingwood v. Row, 




141 


Collins V. Archer, 




162 


V. Carlisle, . 


30, 31 


V. Champ's Heirs, 


136 


142 


I'. His Creditors, 




no 


V. Dickerson, 


221 


, 230 


V. Lavenburg, 




46 



Collins V. Smith, 


33, 84, 91 


Collis V. Robbins, 




263 


Collom V. Francis, 




12 


Colman v. East Counties R. R. Co. 


321 


Coloni, Re, 




375 


Colt V. Lasnier, 




251 


Colton V. Ross, . 


248 


309 


V. Wood, 




33 


Columbian Government 


V. 




Rothschild, . 




2 


Columbus V. Jacques, 




211 


Colvin, Matter of, 


298, 


355 


V. Owen, 




269 


Colyer v. Finch, 


151, 


162 


Combs V. Boswell, 




363 


Comegys v. State Bank, . 




269 


Coml. Bk. V. Western Bank 


269 


270 


Commercial Ins. Co. v. McL 


oon, 


309 


Commonwealth v. Addicks, 




283 


V. Duffield, 




09 


V. Franklin 


Can. 




Co., . 




356 


V. McAliste 


r, • 


60 


V. Martin, 


42 


138 


V. Martin's Exr's. 


136 


V. Shelby, 




263 


Com. of Moyamensing v. Long, 


301 


Compton V. Greer, 




227 


Comstock V. Rayford, 




302 


Conally v. Cruger, 




356 


Conant v. Warren, . 




335 


Conklin v. Conklin, . 




233 


Conner v. Banks, 




111 


V. Chase, 




20 


V. Drake, 


192, 


373 


V. Lewis, 




33 


Conrad v. Foy, . 




268 


V. Harrison, , 




270 


Consequa v. Fanning, 


227, 


379 


Consolidated Co. v. Riley, 




161 


Constable v. Bull, 




31 


Contee v. Dawson, 


312, 


350 


Conter v. Pratt, 




417 


Converse v. Blumrich, 




128 


t>. McKee. . 




243 


Conway v. Alexander, 


, . 


111 


V. Ellison, . 


176 


198 


Conwell V. Evil!, 




HI 


V. Sandige, . 242 


, 243, 


244 


Cook V. Barr, . 




230 


i\ Burton, 




250 


V. Cole, . 




174 


V. Cook, . 




176 


V. Ellington, . 




31 


V. Hinsdale, 




267 


V. Gaiza, . 




151 


S. Gregson, 




252 


V. Rosslyn, 




205 


V. Smith, . 




114 


V. Vick, . 




192 



XlVl TABLE 


OF 


AM 


Cooke V. Husbands, 


. 4r 


, 4G 


V. Lamotte, 




184 


V. Nathan, 


. 


168 


Coombs V. Warren, . 




114 


Coon V. Swan, '. 


. 


6 


Coonrad f. Coonrad, 




156 


Cooper V. Bigbj', 




2V0 


V. Davis, 


114, 


208 


V. Farmers' Ins. Cc 


'J 


171 


V. Gunn, 




317 


In re, 




283 


V. Martin, 




113 


V. Whitney, . 




111 


Coop\rood V. Bolton, 




228 


Cope V. Smith, 


. 


268 


Cope's Appeal, 




243 


Copeland v. Crane, . 




363 


Coppidge V. Threadgill, 


48, 


174 


Corbett v. Corbett, 




230 


Corbin v. Wilson, 




287 


Cordingly v. Cheeseborovic 


;h, : 


00 


Corning v. Lowcrre, 




211 


V. Troy Iron Fact 


iry, • 


199 


Cornish v. Wilson, 254, 2 


55, 263 


272 


Cornwell v. Lee, 




310 


Cornwise v. Bourgum, 




286 


Corps V. Robinson, 




6 


Corry v. Caxton, 




153 


Corron v. Mellaudon, 




323 


Corson v. Mulvaney, 




82 


Cortleyen v. Hathaway, 


122 


353 


Cory V. Eyre, 




147 


Coster V. Clarke, 


316 


400 


V. Griswold, . 




198 


Cotheal v. Talmage, . 




108 


Cottam V. Eastern Countie 


3R. R. 




' Co., 




58 


Cotton V. Hart, 




151 


Cottrell's Appeal, 




269 


Couch V. Terry, 




268 


Courtney v. Courtney, 




39 


Coutant V. Servoss, . 




270 


Covell V. Doloff, 


114 


118 


Covenhovcn (Case of), 




292 


Coventry v. Chichester, 




105 


Cowden v. Covvden, 




248 


Cowden's Estate, 




270 


Cowdin V. Cram, 




361 


Cowles V. Buchanan, 




303 


V. Brown, 




186 


V. Carter, 


19G 


356 


V. Whitman, , 




77 


C5wl3 V. Cowls, 




283 


Cowman v. Hall, 




233 


V. Kingsland, 




19 


Cox V. Corkcndall, 




263 


1'. Coventon, 




84 


V. Cox, 




86 


V. Fenwick, 




128 


V. Hickman, 




239 



RICAN CASES. 

Cox V. McMullen, 

V. Mayor of Griffin, 
V. Peters, . ^ 
V. Scott, 

V. Williamson, . 
V. Wood, 
Craddock v. Cabiness, 
Cradock v. Owen, 
V. Piper, 
Craft V. Lathrop, 
Craig V. Kitbridge, 

V.Leslie, 33, 42, 136, 
V. Tappin, 
Craighead v. Wilson, 
Craik v. Clfwk, 
Cralle v. Meen, 
Cram i'. Green, 
Crandall v. Hoysradt, 

V. Bacon, 
Crane v. Burntrager, 
V. Conklin, 
V. DeCamp, 
V. Hewitt, 
Crapster v. Griffith, . 
Crawford v. Summers, 
Crawley v. Poole, 

V. Tiraberlake, 
Creager v. Brengle, . 
Creaser v. Robinson, 
Creath v. Smith, 
Creed v. Lancaster Bank, 
Crenshaw v. Anthony, 
Crest V. Jack, . 
Crews V. Burcham, 

V. Threadgill, 
Crittenden v. Brainard, 
Crocheron v Jaques, 
Crocker v. Crocker, 
V. Higgins, 
Crockett v. Grain, 

V. Maguire, 
Croft V. Arthur, 

V. Moore, 
Cromer v. Pickney, 
Crompton v. Yasser, 
Cromwell v. Bank of 
Cronise v. Clark, 
Crooker v. Crooker, 

V. Jewell, 
Crosby v. Berger, 
V. Huston, 
V. Mason, 
Cross I'. Cheshire, 
V. De Vallc, 
V. Hepuer, 
V. Robinson, 
V. Sprigg, 
Crossler v. Lightowler, 
Croton Turnpike v. Ryder, 
Crouch r. Puryear, 



Pittsbu 



37, 



231 
338 
243 
360 
282 
128 
183 
,263 
61 
202 
168 
138,139 
110 
375 
113 
8,275 
258 
389 
197 
205 
14, 183 
111 
179 
233 
168 
309 
208 
269 
301 
417 
416 
153 
268 
202 
HI 
115 
37 
150 
304,312 
243 
153 
101 
269 
258 
77, 269 
irg, 1 1 5 
. 356 
. 243 
. 115 
6 
. 153 
. 205 
. 240 
202, 403 
. Ill 
. 110 
. 106 
. 211 
. 811 
. 208 



10 



TABLE 


OF 


AMERICAN CASES. 


X 


Ivu 


Crowder v. Clowes, . 




105 


Darling v. Hammer, . 


309, 


335 


Croxall V. Shererd, . 




40 


Darrah v. McXair, 




50 


Cruger v. Halliday, . 37, 


38, 39 


303 


Dashiel i*. Collier, 




233 


V. Heyward, . 




287 


Dashiell v. Att.-Gen. 




65 


Crumb, Ex parte, 




282 


Daughaday v. Paine, 




128 


Crutchfield v. Donelly, 




356 


Davenport v. Davenport, . 




208 


Ex parte, 




285 


David V. Grahame, 


. 


121 


Cryder's Appeal, 




263 


Davidson v. Cowan, . 




153 


Cuddle r. Rutter, 




77 


V. Little, . 


79, 


186 


Cudworth v. Hall's Adm'r. 




40 


V. Moss, 




179 


Cuff V. Borland, 




84 


I'. Potts, . 


301, 


302 


CuUison V. Bossom, . 




. 12 


Davies v. Davies, 




297 


CuUum V. Bloodgood, 


222 


241 


Davis V. Christian, . 




241 


r. Casey, 




198 


V. Clabaugh, . 




320 


Cumberland v. Codrington 






V. Davis, . 




230 


26 


1, 265, 


274 


V. Harkness, . 


281 


286 


Cumberland R. R. App., 




309 


V. Harrison, . 




303 


Cumming, Re, . 




293 


V. Hoopes, 




194 


Cummins v. White, . 


221 


222 


V. Johonnot, . 




285 


Cunningham v. Ashley, 




176 


V. Mapes, 




308 


V. Littlefield, 




240 


V. Mayor, &c., of New York 


356 


I'. Rogers, 




415 


V. Mikell, 


. 


269 


1'. Rome R. R 


. Co.j 


211 


V. Reed, . 


, 


210 


Currie v. Steele, 




188 


V. Roberts, 




286 


Curry v. Larer, 




107 


V. Rogers, 




168 


Curtis V. Curtis, 




283 


V. Tiugle, 


. 


176 


V. Lunn, 




151 


& Brooks V. The Brig 


Sen- 




V. Mund, 




155 


eca, 




233 


r. Tyler, . 




310 


Davison v. Davison, . 


. 


86 


Gushing r. Ayer, 




270 


V. De Freist, 




285 


Cushnej" v. Henry, 




37 


Davoue v. Fanning, . 61 


309 


325 


Cutting V. Carter, 




208 


Daw V. Terrel, . 




124 


Cuyler r. Bogart, 


's 


308 


Dawes v. Howard, 


. 


287 


I'. Ensworth, . 




269 


Dawson v. Dawson, . 




37 


V. Ferrill, 




230 


V. Jay, . 
V. Lawes, 




282 
268 


Dabbs V. Dabbs, 




375 


V. Lawrence, 




302 


Dabney v. Green, 




113 


Re, . . . 




282 


Dackett v. Skinner, . 




285 


V. Williams, 




238 


Daggett V. Lane, 




184 


Day V. Roth, 




33 


Daily o. Litchfield, . 


77 


312 


w. The State, 




3 


Daking v. Demming, 




227 


V. Welles, . 




198 


Dale V. Hamilton, 




28 


Deaderick v. Watkins, 


79 


174 


V. McEvers, 




363 


Deal V. Bogue, , . ; 




243 


V. Rosevelt, 




194 


Dean v. Dean, . 


, 


128 


Dalzell V. Crawford, . 


84 


156 


V. Mitchell, 




233 


Dana v. Brown, 




321 


Dearborn v. Taylor, . 




110 


Danbury v. Robinson, 




147 


Dearing v. Lightfoot, 




152 


Dandridge v. Minge, . 




261 


Deas V. Harvie, . 




19 


Danels v. Taggert, 




337 


Dcatly V. Murphy, 




183 


Danforth v. Lowry, . 




51 


Deaver v. Eller, 




356 


V. Smith, . 




309 


V. Erwin, 


198 


356 


Daniel v. Ballard, 




269 


De Barante v. Gott, . 




37 


V. Joyner, 




270 


De Beauvoir v. De Beauvoir, 




138 


V. Morrison's Ex'rs 


., 300 


,403 


Decamp v. Feay, 




90 


Daniell v. Mitchell, . 


21, 191 


,397 


Decaters v. Le Ray de Chaumont 


61 


Daniels v. Lewis, 


. 


86 


Deckard v. Case, 




241 


V. Mowry, 




113 


Decker v. Hall, 


112 


114 


Darbey v. Whitaker, 




77 


V. Miller, 


. 


390 


Darby v. Baine, 


. 


233 


Da Godey v. De Godey, 




356 



xlviii 



TABLE OF AMERICAN CASES. 



De Graffenreid, Ex parte, . 




282 


Dickey v. Thompson, 




270 


Dering v. Earl Wincbelsea, 


208 


269 


Dickinson v. Codwise, 




33 


De Hart v. Baird, 




303 


V. Dickinson, . 




244 


Delloghton r. Monej-, 




314 


V. Glennery, 




74 


Dehon v. Foster. 




194 


V. Legare, 




2-iO 


Deibler v. Barwick, . 




128 


Dickson v. Miller, 




40 


Deil's Ex'rs. v. Roger, . - 




220 


V. Montgomery, . 


6 


5, 09 


De Jarnette v. De Jarnette, 




50 


Didicr v. Davison, 




340 


Delafield v. State of Illinois, 


, 


194 


Dietricschen v. Calburn, . 




207 


Delanay v. McUonnell, 




111 


Digman v. McCollum, 




153 


De Lane v. Moore, 


. 


153 


Dike V. Greene, 




77 


Delano v. Windsor, . 




363 


Dill V. Shahan, . 


108, 


402 


Delassus v. Posten, . 




128 


Dillman v. Cox, 




101 


De La Yergne v Evertson, 




312 


Dilly V. Bernard, 




363 


Delaware and Maryland R. R. Co. 




V. Heckrotte, 




304 


V. Stump, 




211 


Diman v. Providence R. R. 


Co.', 


171 


Deloney v. Walker, . 




231 


Dimes i-. Steinberg, . 


248 


353 


Delony v. Hutchinson, 




246 


Dimmock v. Bixbj', . 


310, 


355 


De Louis v. Meek, 




419 


Dinsmoor i'. Hazleton, 


12 


344 


Demarest v. Wynkoop, 115 


151 


173 


Disbrow v. Henshaw, 




283 


De Mattos v. Gibson, 


81 


207 


Dixie V. Wright, 




144 


De Meza r. Generis, . 




110 


Dixon Crucible Co. v. Gug 


jen- 




Deming v. Colt. 


241 


240 


heim, .... 




217 


Dennis v. Dennis, 


85 


108 


Dixon V. Gayfere, 




137 


V. Green, 




350 


V. Warters, 




232 


V. Riley, 




389 


Dob I'. Ilalsey, . 




239 


V. McCagg, 




31 


Dobson V. Land 




118 


Dennison v. Goehring, 33, 40, 09 


100 


V. Pearce, 




198 


Denny v. Branson, 


207 


208 


Dobyr. Mitchell, 




46 


Dent V. Sumracrlin, . 




356 


Dodd V. Seymour, 




77 


Denton v. Denton, 




360 


Doddington v. Hallet 




208 


V. Graves, 




194 


Dodge V. Dodge, 




94 


V. Jackson, . 




321 


V. Evans, 




128 


V. MacNeil, . 




177 


V. Perkins, 




302 


V. Stewart, 




91 


Dobson V. Simpson, . 




251 


V. Woods, 




230 


Doe V. Doe, 




202 


Depeyster v. Gould, • 




33 


Doe d. Newman v. Rusham, 




146 


V. Graves, . 


196 


356 


Doebler's Appeal, 




84 


De Poe V. Sohlke, 




207 


Doggett V. Emerson, . 




191 


Derbyshire v. Home, 




402 


Dorainickzj. Michael, 84,88 


, 130 


379 


Derush v. Brown, 




233 


Donaldson v. Kendall, 




240 


Desborough v. Harris, 




203 


Donelson Admr's. v. Posey, 




310 


Despain v. Carter, 




86 


Doner v. Stautfer, 


242 


243 


Deveau v. Fowler, 


, 


243 


DonncU v. Mateer, 




230 


De Veney v. Gallagher, 


, 


210 


Donohoo V. Lea, 




141 


Devereaux v. Cooper, 


308 


344 


Doran v. Brazleton, . 




301 


Devon (Duke of) v. Eglin, 




319 


Dorr V. Shaw, . 




272 


Dewar v. Maitland, . 


, 


96 


Dorsey v. Clarke, 




29 


Dewitt V. Ackerman, . 


, 


230 


V. Dorsey, 




01 


V. Yates, 




104 


V. Gilbert, 




285 


De Wolf r. Mallett, . 




312 


V. The Hagerstown B 


fink. 


196 


Dexter v. Arnold, 227, 363, 


380, 


416, 


Doub V. Barnes, 


310, 


356 






417 


Dougan v. Blotcher, . 




86 


Dey V. Dunham, 


111, 


153 


Dougherty v. Jones, . 


379 


383 


Diamond v. Lawrence, 




157 


. V. Hampston, . 




• 77 


Dias V. Bouchard, 


316 


320 


V. McColgan, . 




118 


Dick V. Pitchford, 


4 


J, 44 


V. Yan Nostrand 


244, 


246 


Dickenson v. Grand Junctio 


1 




V. Walters, 




399 


Canal Co., . 




207 


Douglas V. Andrews, 




287 


Dickerson v. Commissioners 




198 


V. Sherman, . 


113, 


406 



TABLE OF AMERICAN CASES. 



xlix 



Douglas V. Webster, . 




96 


Douglass V. Wiggins, 




. 208 


Dow V. Jewell, . 




. 33 


Dowdall V. Lenox, 




. 389 


Dowell V. Jacks, 


. 29 


0, 291 


Dower v. Fortner, 




. 191 


Dowle V. Saunders, . 




. 151 


Dowling V. Betzemann, 




. 77 


Downer i'. Staine, 




311 


Downey v. Hotchkiss, 




. 86 


Downing v. Palmateer, 




121 


Downman v. Rust, 




156 


Dow's Petition, 




285 


Dows V. Durfee, 




228 


Doyle V. Sleeper, 




101 


V. Teas, . 




151 


Dozier v. Edward, 




321 


V. Lewis, 




268 


Drake v. Pell, . 




136 


V. Gooderidge, 




313 


V. Symes, 




11 


Drane v. Gunter, 




37 


Draper v. Gordon, . 1 


7, 40 


2, 403 


Drayton, Ex parte. 




292 


Matter of, . 




296 


Dresherr. Allentown, 




230 


Dresser v. Dresser, 




30, 31 


Driver v. Driver, 




340 


Drope V. Jliller, 




376 


Drown v. Smith, 




208 


Drum V. Simpson, 




364 


Drumraond v. Drummond . 




324 


Drury v. Conner, 


28 


1, 363 


V. Roberts, . 1£ 


6, 24 


3, 356 


Drusadow v. Wilde, . 




100 


Dryden v. Hanway, . 




33 


Du Bois V. Baum, 




88 


Dubourg de St. Colombe's 


Heirs 




V. The U. S., . ' . 




222 


Dubs V. Dubs, . 




44, 51 


Ducker v. Belt, . 


39 


7, 416 


Dudley v. Bosworth, . 


3 


i, 101 


V. Matlack, 




128 


Dufossat V. Berens 




198 


Duffy V. Calvert, 




156 


V. Masterton . 




28 


Duncan v. Duncan, . 




96 


V. Hayes, 




211 


V. Lyon, 


1 


9, 240 


V. Mizner, 




312 


Duncombe v. Greenacre, . 




48 


Dunham v. Jackson, . 




360 


r. Minard, . 




231 


V. Osborn,^ . 




233 


V. Rogers, . 




239 


V. Winans, . 




399 


Dunkley v. Van Buren, 




117 


Dunlap V. Clements, . 


19 


6, 356 


V. Dunlap, 


26 


1, 263 


V. Gibbs, 




303 


D 







Dunlap V. Mitchell, , 
Dunn V. Cooper, 
V. Olney, . 
V. Moore, . 
V. Sparks, 
Dunnien v. Coy, 
Dunning v. Stearns, . 
Dunnock v. Dunnock, 
Dunseth v. Bank U. S. 
Dunwidie v. Kerley, . 
Dupont V. Johnson, . 
Duponti V. Massy, 
Dupuy V. Johnson, . 
Durard v. Bacott, 
Durell V. Pritchard, . 
Durette v. Briggs, 
Dusten v. Newcomer, 
Dutch Church v. Mott, 
Duval V. Bibb, . 
V. Waters, 
Duvall V. Myers, 

V. Waters, 
Duryea v. Burt, 
Dwight V. Pomeroy 
Dwinal v. Smith, 
Dyer v. Bean, 

V. Clark, . 

V. Martin, . 

V. Potter, . 
Dykers v. AVilder, 

Earl V. Dresser, 

V. Halsey, . 
Earl Talbot v. Scott, 
Early v. Friend, 
Eastburn v. Kirk, 
Eastland v. Vanarsdel, 

V. Amoskeag Co 
Eastman v. Plumer, 
Eaton's Appeal,- 
Eaton V. Benton, 

V. Eaton, 

V. Watts, 
Ebenhardt's Appeal, 
Eberly v. Groff, 
Eckert v. Baeert, 
Eckford v. De Kay, 
Eckman v. Eckman, 
Eddleston v. Collins 
Eddy V. Traver, 
Edelsten v. Edelsten, 
Edgar v. Donnally, 
Edleston v. Vick, 
Edmonds v. Crenshaw, 
Edmonds' Appeal, 
Edmondson v. Welsh 
Edmonson v. Dyson, 
Edmunds v. Foley, 
Edrington v. Allsbrooke 
Edwards v. Atkinson, 



, 61 

309, 310 

272 

86 

269 

33 

221 

309 

233 

221 

287 

347 

268, 270 

168 

219 

128 

90 

84 

128 

210 

82, 86 

207, 208 
247 
168 

5 

363 

246 

128, 364 

389 

20 

288 
62 

208, 211 
230 

392, 402 

80 

214 

77 

26 

100 

196 

33 

271 

362 

323 

364 

363 

2, 403 

273 

212 

37 

217 

61, 153 

168 

233 

48 

10 

196 

86 



28 



40 



TABLE OF AMERICAN CASES. 



Edwards v. Bonhannon, . 


317 


Erskine v. Townsend, 






121 


V. Burt, 


186 


Erwin v. Meyers, 






91 


V. Handley, . 


84 


V. Parham, 




79, 


174 


V. Ferryman, 


356 


Eshleman v. Davis, . 






33 


Exr's V.Trumbull, 


123 


Eskridge v. McClure, 






128 


Egbert v. Brooks, . ^ 


61 


Eslava v. Lepetre, 






233 


Egberts v. Wood, 


241 


Espey V. Lake, . 






184 


Egerton v. Brownlow 


42 


Espin V. Pemberton, . 






157 


Eider iJ. Elder, . , . 


85 


Essex V. Berry, . 






198 


Elderkin v. Fitch, . . 34 


7, 402 


Estill V. Clay, . 






312 


V. Shultz, . 


317 


Eubank v. Poston, 






128 


Eldred v. Camp, . , 19 


6, 356 


Evans v. Boiling, 






371 


Eldridge v. Eldridge, 


233 


V. Duncan, 




257, 


272 


V. Hill, 


199 


V. Evans, 




233 


244 


V. Smith, . 


202 


V. Goodlet, 






128 


Elias, Matter of. 


294 


V. Jones, 






153 


Elkins V. Edwards, . 


110 


V. Kingsberry, 




90, 


136 


Ellard v. Cooper, 


275 


V. Knorr, 






45 


EUerte v. The Heirs and Legatees 


5 


V. Tatem, 






395 


ofEllerte, . . . . 


287 


Everett v. Winn, 






317 


Ellicott, V. Carter, 


263 


Everitt v. Watts, 






338 


V. Ellicott, . 


302 


Everly v. Rice, . 


196 


268 


356 


V. Warlord, . 


355 


Evertson v. Booth, . 




272 


400 


EUingwood v. Stevenson, . 


360 


V. Tappen, . 






233 


Elliot V. Morris, 


28 


Ewell V. Tidwell, 






248 


Elliott V. Adams, 


193 


Ewing V. Blight, 






352 


V. Armstrong, 


33 


Eyre v. Countess of Shaftesbury, 


281 


V. Carter, 


263 


V. Eyre, 






86 


V. Maxwell, 


111 


V. Golding, 






103 


V Merryman, . 


156 


V. Potter, . 


174, 


176, 


303 


V. North Eastern R. R. 




Eyrick v. Hettrick, 






37 


Company, . 


210 


Eyton V. Mostyn 




196, 


356 


V. Pool, . . . . 


61 










V. Waring, . . 4 


8, 317 


Fabre v. Colden, 






48 


Ellis v. Ellis, . 


31, 86 


Fairbanks v. Bloomfield 


• 




110 


V. Paige, . 


263 


Fairchild v. Valentine, 






220 


V. Woods, . 


45 


Falcke v. Gray, . 




77, 79 


Ellison V. Commissioners, . 


211 


Fall River Whaling Company v. 




V. Daniels, 


114 


Borden . 






243 


V. Moffat, 


227 


Fallon V. R. R., . 






81 


Ellsworth V. Curtis, . 


333 


Fancher v. Ingraham, 






335 


Elmedorf V. De Lancy, 


312 


Fant V. Miller, . 




20, 21 


Elrod V. Lancaster, . 


61 


Farina v. Silverlock, . 




217, 


378 


Elwood V. Diefendorf, 


269 


Farringer v. Ramsey, 






33 


Ely V. McKay, . 


82 


Farley v. Blood, 




202, 


206 


Emanuel v. Bird, 


243 


V. Bryant, 


168, 


363 


364 


Emerson v. Udoll, 


198 


V. Goocher, 






111 


Emmons v. Bradley, . 


272 


Farmers' Bank v. Vanmeter, 




198 


V. Kiger, 


88 


Farmers' & Mechanics' 


Bank v. 




Endicott v. Penny, . 


19 


Griffiith, 






346 


Engel V. Schewerman, 


198 


Farnham v. Clements, 






33 


English V. Foxall, 


309 


Farnsworth v. Childs, 






153 


V. Lane, 


111 


Farnum v. Bennett, . 






110 


V. Russel, 


128 


Farrar v. Haselden, . 






258 


Enos V. Hunter, 


33 


Farrell v. McKee, 






363 


Ensley v. Balentine, . 


33 


V. Parlier, 






113 


Ensworth v. Lambert, 


315 


Fassett v. Traber, 




270, 


272 


Enthoven v. Cobb, 


15 


Faulkner Adm'x v. Harwood 




19 


Eppes V. Randolph, . 


269 


Fausler v. Jones, 






33 


Erickson v. Willard, . 


31 


Fay V. Noble, . 






239 



TABLE OF AMERICAN CASES. 



u 



Fearns i'. Young, 




61 


Fears v. Brooks, 


44, 46 


Feidler v. Diirrin, 




111 


Felcli V. Hooper, 




20 


Felder v. Davis, 




310 


Fellows V. Tann, 




44 


Fells V. Read, . 




77 


Fentis v. Robins, 




198 


Feuwick v. Macey, 




115 


Fenwicke v. Gibbes, . 




379 


Ferguson v. Davol Mines, . 




217 


Ferguson v. Fisk, 




194 


V. OHarra, 


33 


i, 339 


V. Wilson, . 




77 


Ferris v. Irving, 




81 


Field V. Arrowsmith, 




37, 61 


V. Eaton, . 




92 


V. Evans . 




45 


V. Jones, . 




355 


V. Moore, . 




289 


V. Schieffelin, . 17, 


25 


1, 402 


V. Wilson, . 




303 


Filley v. Fassett, 




217 


Filman v. Divers, 




33 


Finch V. Houghton, . 




121 


V. Shaw, . 




162 


Findlay v. Smith, 




, 208 


Findlay's Ex'r v. U. S. Bank, 




. 272 


Finley v. Aiken, 




77 


V. Bank U. S., 




315 


Lessee of, v. Riddle, 




40 


Firmstone v. De Camp, 




168 


Firth V. Ridley, . 




81 


Fish V. Lightner, 




77 


V. Miller, . 




338 


V. Rowland, 




317 


Fisher v. Boody, . 176, 


17 


7, 303 


V. Fields, . 




28 


V. Johnson, 




129 


I'. Kay, . 




90 


V. Moolick 




77 


V. Tucker, 




240 


Fisk V. Sarber, . 




61 


Fitch V. Weber, . 




138 


Fitzpatrick v. Featherstone, 




77, 84 


V. Nolan, 




81 


Fitzsimmons v. Goslin, 




177 


Fitzsimons v. Fitzsimons, . 




96 


Flagg V. Mann, 9, 15, 28, 123, 


15 


I, 158, 
162 


Flavell V. Harrison, . 




. 217 


Fleeson v. Nicholson, 




. 233 


Fleming v. Beaver, 




. 269 


V. Buchanan, 


S 


9, 263 


V. Burgin, . 




. 153 


V. Donahoe, . 




. 28 


V. Gilmer, . 




. 310 


V. McHall, . 




. 33 


Flemyng v. Hector, . 




. 239 


Fletcher v. Asbburaer, 


13 


6, 137 



Fletcher v. Holmes, . 

V. Wilson, 
Flint V. Clinton Co., . 

V. Warren, 
Florence v. Hopkins, . 
Flowerton t'. Wimbushj 
Floyd V. Barker, 
Fluck V. Replogle, 
Fog V. Johnstone, 
Fogg V. Rogers, . 
Foley V. Hill, . 
Folk V. Beidelham, 
Follansbee v. Kilbreth, 
Foltz V. Pourie & Dawson, 
Fonda v. Penfield, 

V. Jones, 
Fountain v. Ravenel, 
Foot V. Webb, . 
Forbes v. Whitlock, 
Ford V. Gaithur, 

I'. Irwin, 
Forde v, Herron, 
Fordham v. Wallis, 
Fordice v. Bridges, 
Foreman v. Murray, 
Forkner v. Stuart, 
Forman, In re, . 

V. Rodgers, 
Forsythe v. McCreight, 
Fort V. Ragusin, 
Foss V. Haynes, . 
Foster v. Alston, 

V. Burem, 

V. Cook, . 

V. Crenshaw's Ex'rs 

V. Goddard, 

V. Gordon, 

V. Handley, 

V. Reynolds, 

V. State Bank, 

V. Trustees, 
Fourniquet v. Perkins 
Foust V. Moorman, 
Fowle V. Lawrason, . 
Fowler v. Fowler, 
Matter of, 
V. Saunders, 
Fraim i'. Frederick, 
Franklin Mill Co. v. Schmidt, 
France v. France, 
Francis v. Love, 
Franklin v. Osgood, 
Frazer v. Legare, 
Frazier v. Brownlow, 

V. Frazier, 

Frederick v. Haas, 

Freeland v. Cocke, 

V. Dasey, 

V. Heron, 

V. Stansfield 



128, 



11 



114 

403 

37 

32 

230 

313 

32 

117 

240 

310 

20 

150 

33 

19 

57 

128 

65 

77 

321 

263 

111 

246 

269, 275 

30 

286 

1, 241 

290 

317 

198 

23 

310 

280 

404 

309 

274 

386 

233 

254 

110 

198 

33, 269 

386 

230 

220 

168 

293 

303 

151 

197 

356 

88 

309 

312 

46 

32 

33 

227 

250 

228 

243 



lii 



TABLE OF AMERICAN CASES. 



Freeland v. Wilson, . 




203 


Gannett v. Blodgett, . 


, 270 


Freeman v. Curtis, 


1«8, 


191 


Gano V. Gilruth, 


233, 234 


V. Elinendorf, 


196, 


356 


Gans V. Renshaw, 


85 


V. Flood, 




45 


Ganse, Matter of. 


. 293 


V. Freeman, 




86 


Garden v. Ingram, 


. 118 


V. Hartman, 




180 


Gardenhire v. Hinds, 


. 45 


V. Harwood, 




61 


Gardiner v. Dering, . 


. 208 


V. Kelly, . 




33 


Gardner v. Emerson, . 


. 113 


Freetly v. Barnhart, . 




84 


V. Gardner, . 


. 156 


Frelick v. Truuer, 




286 


V. Newburgli 


. 211 


French v. French, 




183 


Garfield v. Hatmaker, 


. 33 


V. Royal Company, 




157 


Garland v. Bowling, . 


. 174 


V. Shotwell, . 


338, 


339 


V. Loving, . 


. 285 


Freto V. Brown, 




287 


Garner v. Garner, 


40, 42 


Friley v. Hendricks, . 




417 


V. Keaton, 


. 346 


Frink v. Lawrence, . 




211 


V. Lyles, 


. 258 


Fripp V. Fripp, . 




79 


Garnett v. Macon, 79, 88, 1 


J6, 251,261 


Frisby v. Ballance, . 


7T, 84, 85 


Garr v. Bright, 


. 313 


Frith V. Cartland, 


57, 60 


221 


V. Drake, . 


. 379 


Frizzle v. Patrick, 




211 


Garrard v. Frankel, . 


. 168 


Fronty v. Fronty, 




186 


Garretson v. Vanlon, 


. 88 


Frost V. Beekman, 




151 


V. Weaver, 


. 243 


In re, 




297 


Garrett v. Garrett, 


. 33 


Frothingham v. McKusic, . 




114 


V. Lynch, 


. 196 


V. Stacker, 




153 


V. White, 


. 230 


Frye v. Bank of Illinois, . 




114 


V. Wilkinson, 


. 101 


Fuller V. Benjamin, . 




321 


Garson v. Green, 


. 128 


V. Yates, . 




94 


Garth v. Cotton, 


. 208 


Fulwood V. Bashfield, 




269 


Gartland t;. Nunn, 


. 314 


Furlong v. Edwards, . 


352, 


356 


Garton v. Bates, 


. 235 


Furman v. Clark, 




81 


Carton's Heirs v. Bates, . 


. 303 


V. Fisher, 


31, 37 


Gartside v. Outrame, 


6 


Furnam v. Coe, . 




57 


Gary v. Cannon, 


. 268 


Futrell V. Futrell, 




183 


Gas Company v. Broadben 
Gass V. Mason, . ' 


t, . 211 
. 183 


Gable v. Daub, . 




92 


V Stinson, 


. 371, 379 


Gadsden v. Carson, . 




243 


V. Wilhite, 


65, 67 


V. Lord, 




269 


Gate V. Adams, 


. 267 


Gafney v. Reeves, 




373 


Gatewood v. Rucker, 


. 317 


Gage V. Brewster, 




113 


Gay V Ballou, . 


. 287 


Gaines v. Chew, 


248, 


310 


V. Hamilton, 


. Ill 


V. Spann, 




280 


Gayle v. Singleton, . 


. 346 


Gaither v. Gaither, . 




248 


Gearhart v. Jordan, . 


. 267, 272 


Galbraith v. Gedge, . 




233 


Geisser v. Beall, 


. 312 


Galdsborough v. Ringgold 


• 


168 


Gelston vrHoyt, 


18, 19 


Gale V. Archer, . 




82 


V. Sigmund, 


. 207 


Gallagher v. Fayette Co. 


R. R.', 


207 


Genet v. Beekman, 


. 42 


Gallagher's Appeal, . 




263 


Gentry v. Rogers, 


. 82 


Gallatian 'v. Cunningham, 


17 


232 


George v. Kent, 


. 151 


V. Erwin, . 


17 


403 


V. Strange, 


. 198 


Gallatin v. Pilot, 




268 


V. Wood, 


. 270 


Gallego's Ex'rs v. Attorney- 


-Gen- 




George's Creek Coal Comj 


>any v. 


eral, 




65 


Detmold, 


. 210 


Galloway v. Hamilton's Heirs, . 


129 


Gerkeu's Estate, 


. 275 


Galphin v. McKinney, 




316 


Gernon v. Boecaline, 


• 300 


Gait V. Calland, 




240 


Gevers v. Wright's Exr's., 


. 42 


V. Jackson, 




111 


Gibbes v. Cobb, 


. 153 


Gammon v. Freeman, 




233 


Gibbs V. Clagett, 


. 310 


V. Howe, 




107 


V. Marsh, 


. 30 


Sanetson v. Weaver, 




243 


Gibler v. Trimble, 


. 159 



TABLE OF AMERICAN CASES. 



liii 



Gibson v. Bailey, 


. 


121 


V. Broadfoot, 




192 


V. Foot, 


27, 33 


V. Goltltwaite, 


203 


205 


V. McCormick, 


261 


263 


V. Tilton, 


196, 


356 


Gifford V. Xew Jersey R. R 


. Co., 


321 


V. Tliora, 


, 


174 


Gilbert v. Carter, 




33 


V. ChapiD, 




31 


V. Colt, . 




360 


V. Gilbert, 




168 


V. Lewis, 


, 


45 


V. McEachen, 


, 


286 


V. Mickle, 


, 


211 


V. Hosier, 




363 


V. Sutliff, 




314 


V. Trustees of th 


i East 




Newark Co., . 




87 


Gilkey v. Paige, 


, 


344 


Gill V. Lyon, 




270 


V. McAtee, . 


, 


153 


Gillespie v. Moon, 


85, 


168 


I'. Somerrille, 




233 


Gillett V. Hall, . 




240 


Gillis V. Hall, . 




77 


Gilman v. Brown, 




128 


V. Hamilton, 


, 


69 


V. Hidden, 


. 


121 


Gilmore v. Gilmore, . 


, 


379 


V. N. A. Land Co., 




243 


V. Patterson, 


, 


363 


Gilroy v. Alis, . 




84 


Gist V. Frazier, 




174 


Givens v. Campbell, 




197 


V. MeCalmont, 




118 


Glass V. Hulbert, 




168 


Glasscock v. Glasscock, . 




128 


I'. Minor, . 




177 


Glaze V. Drayton, 


. 


81 


Gleaves v. Paine, 


, 


47 


Glenn v. Fowler, 




194 


V. Grover, 


308 


363 


V. Randall, 


21 


363 


Glenorchy v. Bosville, 




40 


Gloninger v. Hazard, 




226 


Glover V. Fisher, 


87, 88 


Goddard v. Gardner, 




6 


V. Lawyer, . 




110 


Godwin v. Yonge, 




168 


Golden v. Maupin, 




235 


Goldsmith v. Berthold, 




239 


V. Guild, . 




88 


Goltra V. Lanasack, . 




168 


Gomez v. Tradesman's Ban 


k, 28, 33 


Gompertz v. Pooley, . 




194 


Good V. Burton, 




126 


Goodall V. Little, 


• 6j 


7, 17 


Goodburn v. Stevens, 




233 


Goodhue v. Barnwell, 




281 



Goodrich v. Friedersdorff, . 118 

V. Pendleton, 337, 339, 340 

Goodson V. Ellison, ... 38 

Goodwin v. McGehee, 

Goodwyn v. State Bank, 

Gordon v. Atkinson, 

V. Gordon, 

V. Graham, 

V. Green, 

V. Stevens, 

V. Watkins, 

Gore V. Bowser, 

V. Gibson, 

V. Pettis, . 

Gorham v. Gorham, 

Goss V. Lester, . 

Gossin V. Brown, 

Gott V. Cook, 

Gough V. Crane, 

V. Pratt, 

Gould V. Gould, 

V. Hayes, 

V. Winthrop, 

V. Womack, 

Goundie v. Northampton C 

Gourley v. Woodburj^, 

Gouveneur v. Elmendorff, 

Gouverneur v. Lynch, 

Governor v. McEwen, 

Gowan v. JeflFries, 

Gracie v. Freeland, . 

Graeff «. De Turk, . 

Graff V. Castleman, . 

Graham v. Davidson, 

V. Hackwith, 

V. Lambert, 

V. Little, 

V. Pancoast, 

V. Samuel, 

r. Tankersley, 

Graham's Appeal, 

Grant v. Duane, 

V. Davenport, 
V. Grant, 
V. Quick, 
V. U. S. Bank, 
Graser v. Stelhvagen, 
Gratz V. Cohen, 
Graves v. Dugan, 
Gray v. Downman, 
V. Gray, . 
V. Haig, . 
V. Jenks, . 
V. Regan, 

V. Washington, . . a::i 

Graydon v. Gray don, . 230, 231 

Great Falls Co. v. Worster, . 117 
Great Northern R. R. Co. v. Man- 
chester R. R. Co., . . 207 
Greedy v. Lavender, . . 49 



. 157 

196, 356 

33, 138 

. 179 

. 110 

. 28 

94 

. 23 

6 

. 183 

. 302 

. 290 

. 272 

. 269 

. 136 

. 86 

. 198 

. 248 

0, 314, 315 

. 261 

. 77 

o., . 150 

. 230 

176, 303 

. 270 

. 222 

. 243 

. 397 

. 186 

251 
58 

167 
. ■ 58 
. 183 
. 183 
. 153 
402, 403 
. 232 
. 113 
, 353 
. 36 
. 194 

163 

241 
. 183 
. 33 
. 173 
. 392 
. 403 
. 110 
334, 335 



151, 



84, 



20, 62, 



liv 



TABLE OF AMERICAN CASES. 



15 



Green v. Butler, 

V. Carey, 

V. Coorland, 

V. Demoss, 

V. Drinker, 

V. Givan, 

V. Goodall, 

V. McKinney, 

V. Morris and Essex R. R 
Co., 

V. Oakes, 

V. Phillips, 

V. RamagCj 

V. Slayter, 

V. Thompson, 

V. White, 

V. Winter, 
Greenawalt v. Kreider, 
Greene v. Greene, 
Greenin v. Hoey, 
Greenleaf t;. Qneen, 
Greenon v. Hoey, 
Greenway v. Greenway, 
Greenwood v. Broadhead, 
Greer v. Caldwell, 
Gregory v. Mighell, . 
V. Murrell, . 
V. Valentine, 
Gregory's Exr's, v. Forreste 
Gresley v. Mousley, 
Gretton v. Haward, 
Greville v. Browne, 
Gridley v. Dole, 
GrifSn v. Cnnningham, 

V. Blanchar, 

V. Graham, 

V. Morrell, 
Griffith V. Beecher, 
V. Coleman, 
V Cope, 

V. Frederick Co. Bank 
V. Griffith, 
V. Phillips, 
V. Ricketts, 
Griggs V. Thompson, 
Grim v. Wheeler, 
Grimes v. Hoyt, 
Grirastone v. Carter, 
GriswoldT. Smith, 
Gritton v. McDonald, 
Groce v. Field, 
Groesbeck v. Seeley, 
Gross V. Leber, 
Grosvenor v. Austin, 
Groton v. Roxborough 
Grove v. Brien, . 

V. Fresh, 

V. Potter, 
Grover v. Flye, . 

V. Hall, . 



112 
12 
88 
128 
153 
147 
181 
312 



168 

215 

196, 356 

270 

1, 157 

183 

157 

59, 61 

268 

233, 246 

196 

55 
356 
136 
243 
168 

77 
260 
413 
227 
184 

92 
263 
240 

84 
128 

65 
309 
141 
313 

67 

77 

37, 157 

. 232 

31, 139 

335 

344 

175 

153 

153 

128 

418 

33 
168 
243 
114 
270 
310 
311 
110 
227 



Groves v. Fulsome, 
Grubb's Appeal, 
Guard v. Bradley, 
Guerard v. Gaillard, 
•Guerryt>. Durham, 

V. Ferryman, 
Guion V. Knapp, 
Gully V. Crego, 
Gum V. Hanison, 
Gump's Appeal, 
Guthrie v. Gardner, 
Guthrie's Appeal 
Gwin V. Melmoth, 



. 331 
. 247 
. 81 
. 298 
329, 356, 419 
417, 418, 420 
. 270 
. 31 
. 199 
. 168 
33, 101 
. 297 
. 211 



Adm's 



107 
151 
61 
. ' 67 
. 128 
. 110 
250, 315 
. 350 



Hackett v. Alcock, 
Hackwith v. Damson 
Haddix's Heirs v. Haddix's 
Hadley v. Hopkins, . 

V. Pickett, 

Hadlock v. Bullfinch, 

Hagan v. Walker, 

Hagill V. Curril, 

Hagthorp v. Hook, 8, 118, 151, 308, 

344, 363 

Hahn v. Hart, .... 198 

Haight V. Bnrr, . . . 352 

V. Childs, . . . 8e 

V. Morris, . . . 363 

Haigood v. Wells, . . . 286 

Haines v. Beach, . . , 315 

V. Ellis .... 46 

V. O'Conner, . . .33 

Halbert v. Grant, . . . 310 

Haldeman v. Haldeman, . . 240 

Hale V. Hale, . , . .221 

V. Henric, . . . 246 

V. James, .... 233 

Haley v. Baglej, . . .315 

Haleyburton v. Kershaw, . . 261 

Hall's Ex'rs. v. Click, . . 128 

Hall and Wife v. Hall et al., . 86 

V. Hall, 92, 94, 121, 243, 274, 312 

V. Hinds, .... 193 

V. Jones, .... 128 

V. Piddock, . . . 230 

V. Read, .... 168 

V. Ross, .... 84 

V. Stewart, . . . 240 

V. Thompson, . . .177 

V. Towne .... 121 

V. Warren, .... 67 

Hallet V. Collins, . . .162 

V. Thompson, ... 42 

Hallett V. Hallett, . . 258, 320 

Halo V. Schick, . . .111 

Halstead v. Rabb, . . .221 

Halsted v. Meeker's Ex'rs., . 56 

Ham ?'. Goodrich, ... 86 

Hamberlin v. Ferry, . . . 248 

Hamblin V. Dinneford, . 81,207 



TABLE OF AMERICAN CASES. 



Iv 



Hambrook v. Smith, . 
Hamilton v. Hamilton, 
V. Hughes, . 
V. Lockhart, 
V. Marks, . 
V. Neel, 
t'. Nutt, 
V. Rogers, . 
V. Whetridge, 
Hamlin v. Bridge, 
I'. Hamlin, 
Hammer r. McEldowney, 
Hammersly v. Barker, 
t'. Smith, 
Hammond v. Hammond, 
V. Mich. State 
Hampton ik Le%'.v, 
Harasberger v. Kinney, 
Hanberger v. Root, 
Hancock v. Day, 
Handley v. Fitzhugh, 
Hanison i'. Sterry, 
Hanks, Matter of, 
Hanna i'. Spotts, 
V. Ratekin, 
Hannahan v. Nichols 
Hanson v. Field, 

V. Keating, 
Harbers v. Gladsen, 
Harbison v. Lemon, 
Harcum v. Hadnall, 
Hardeman v. Berge, 
Harden v. Miller, 
Harder v. Harder, 
Hardin v. Baird, 
Harding v. Glyn, 
V. Handy, 
I'. Randall, 
Hardwick v. Hook, 
Hardy v. Hawkashaw, 

V. Sproule, 
Hare v. Deusen, . 
Hares v. Stringer, 
Hargrave v. Hargrave 
Haring v. KauflFman, 
Harkness v. Fraser, 

I'. Remington 
Harlan v. Wingates, 
Harland v. Binks, 
Harland's Account, 
Harmer v. Gooding, 
V. Gwynne, 
Harper v. Archer, 
V. Phelps, 
V. Reno, . 
I'. Williams, 
Harper's Appeal, 
Harrington v. Brown 
V. Slade, 
Harris v. Arnold, 



Bank 



5 
240 
233 
303 
203, 205, 206 
6 
153 
110 
211 
313 
168 

77 
392 

44 
103 
310 
269 
198 

90 
268 
221 
241 
292 
281 



360 
303 
47 
90 
84, 183 
136, 137 
192 
335 
33 
28 
31 
191, 303 
177 



183, 



15 



11 



364 
139 
268 
128 
318 

82 
324 
184 

78 
363 

31 
287 
320 
199 

33 

31 
1, 153 
128 
1, 118 

61 
408 
153 



Harris v. Carter, 




151 


V. Harlan, 




128 


V. Knickerbacker, . 




86 


V. Sangston, 




356 


V. Smith, . 




84 


V. Thomas, 




208 


V. Tyson, . 




178 


V. Williams, 




389 


Harrisburg Bank v. Tyler, . 




33 


Harrison v. Deramus, 




91 


V. Guest, 




174 


V. Harrison, 


31, 3c 


t, 47 


V. Long, 




221 


V. Mennomy, 




28 


V. Mock, 




57 


V. Nettleship, 




194 


V. Rowan, . 




376 


V. Rush, 




375 


V. Town, 




79 


V. Tuberville, 




168 


Harrold v. Lane, 




33 


Hart V. CofiFee, . 




319 


V. Farmers' Bank, 


54, 


153 


V. Freeman, 


20, 21 


i>. Hart, 


. 


86 


V. Hawkins, 




246 


V. Mayor of Albany, 


210, 


211 


V. McKeen, . 




310 


V. Ten Eyck, 


: 57, 


379 


Hartshorn v. South Readin 


g, • 


211 


Hartshorne v. Cuttrell, 




193 


V. Hartshorne, 




233 


Harvard College v. Soc. fo 


r pro- 




motingTheological Educ 


atioQ, 


313 


Harvey v. Alexander, 




364 


V. Foley, 




268 


Harwood i-. Kirby, 




230 


Haskell v. Haskell, 




9 


Hassara v. Day, . 




230 


Hassanclever v. Tucker, 


263, 


274 


Hassard v. Rowe, 




285 


Hassel v. Hawkins, 




.105 


Hasting's Case, . 




272 


Hatcher v. Hatcher, . 


86 


270 


Hathaway v. Foy, 




202 


Hattier v. Etinaud, 




192 


Hatton V. Weems, 




61 


Haughty v. Strang, . 




198 


Haughwout t'. Murphy, 




128 


Hauser v. Shore, 




156 


Havens v. Hassey, 




241 


V. Havens, 




94 


V. Sackett, 




94 


Havrell v. Ellsworth, . 




211 


Hawkes v. Hubback, . 




44 


Hawkins v. Clermont, 




335 


V. Gathercole, 




7 


r. Hawkins, 




364 


V. King, 




110 


Hawley v. Clowes, 


. 208 


210 



Ivi 



TAULE OF AMERICAN CASES. 



Hawley v. Cramer, . 01, 151, 
V. James, 22, 5Y, 61, 136, 

V. Mancius, . . 61, 

V. Sheldon, 

V. Wolverton, 

Hawralty v. Warren, , 82, 

Hay V. Marshall, . . 220, 

Haydon v. Goode, 

Hayes v. Caldwell, 

V. Heyer, . 

V. Johnson, 

V. Ward, . 

Haynesw. Forshaw, 

V. Kershow, 

Hays, Ex parte, . 

V. Hall, . 

V. Heidleburg, 

V. Jackson, . . 263 

V. Thode, . 

V. Wood, . 

Hayward v. Carroll, . . 20, 

V. Purssey, 
Haywood v. Cope, 

V. Hutchins 
V. Judson, 
Hazen v. Thurber et al 
Head v. Muir, 
Headley v. Goundry, 
Heard, Ex parte, 
Heath v. Wright, 
Heathcote».The North Stafford 

shire R. R. Co., 
Hebburn v. Snyder, 
Heciiard v. Sayre, 
Hedges r. Riker, 
Hedrick v. Hearn, 
Heeney, Matter of. 
Heirs of Holman v. Bank of Nor 

folk, 
Heist V. Baker, . 
Hellen v. Crawford, 
Heller, Matter of, 
Helling v. Lambey, 
Helm V. Darby, . 
Helms V. Franciscus 
Hemming I'. Swinnerton, 
Hemiup, Matter of, . 261, 38 
Henderson v. Ardery, 

V. Burton, . 128, 

V. Dennison, 
V. Dickey, 
V. Hays, . 
V. Lowry," . 
Hendricks v. Robinson, 
Hendrickson v. Hinckley 
Hendrix v. Money, 
Henn v. Walsh, . 
Hennessy v. Andrews, 
Henry v. Compton 



312 
138, 
233 
272 

82 
306 
168 
222 
275 
3 
356 
203 
268 
251 

78 
286 

81 

95 
275 
153 
270 
304 
303 

77 
220 
231 
233 
192 
106 
282 
217 

194 
128 

88 
285 

86 
297 

310 
128 
268 
296 

85 
259 
364 
193 
392 
106 
254 
336 
169 

77 
121 
303 
198 
320 
243 
153 
270 



Henry v. Henry, . . • . 306 

V. Liles, .... 84 

V. Morgan, . . .157 

Henshaw iJ. Wells, . . . 114 

Hensman v. Fryer, . . . 275 

Henson v. Ott, .... 141 

Hepburn v. Auld, . . 84, 88, 90 

V. Carts, . . .240 

V. Dunlop, ... 84 

Herbert v. Schofield, . . .128 

V. Wren, . . .233 

Herr v. Bierbower, . . . 208 

Herrick v. Blair, . . . 192 

Herron v. Williamson, . . 51 

Hertell «;. Bogert, . . .251 

Hester v. Wilkinson, . . . 286 

Heth v. Cocke, . . . .233 

Hetherington v. Clarke, . .151 

Hewett V. Loosemoor, . . 150 

V. Sturdevant, . 241, 268 

Hewlett V. Hewlett, . . .198 

Heyward v. Cuthbert, . . 287 

Hickling t;. JBoyer, . . . 261 

Hickman v. Cooke, . . .310 

V. Grimes, ... 78 

V. McCurdy, . . 268 

*v. Perrin, . . . 153 

V. Stout, . 220, 222, 303 

Hickox V. Lowe, . . . Ill 

Hidden v. Jordan, . . . 118 

Hiester v. Green, . . . 128 

V. Madeira, . . .Ill 

Higdon V. Heard, ... 3 

Higgins V. Joice, . . .179 

V. Woodward, . 196, 356 

High and Wife v. Batte, . .129 

V. Worley, . . . .137 

Hightower v. Mustain, . . 314 

V. Smith, . . . .392 

Higinbotham v. Burnet, . . 335 

Hilar v. Darly's Admr's., . . 254 

Hill V. Beach, . . . .443 

V. Bowyer, .... 399 

V. Commissioners, . . 320 

V. Epley, .... 150 

V. Grigsby, . . . .128 

V. Lackey, . . ... 167 

V. McLaurin, . . . 183 

V. Ressegieu, ... 81 

V. Rockingham Bank, . 77, 80 

V. United States, . . . 194 

Hilleary v. Hurdle, . . .309 

Hillyard v. Miller, . . .43- 

Hilton V. Duncan, ... 86 

Hinchman v. Richie, . . 290, 292 

V. Patterson, . . 210 

Hindson v. Wetherill, 61, 184, 248 

Hine v. Dodd, .... 153 

V. Handy, . . . .194 

V. Hine, . . . .105 



TABLE OF AMERICAN CASES. 



Ivii 



Hine v. Stephens, 






196 


Honors v. Colmesnil, 


. 244 


Hines v. Keller, . 




. 


269 


Hood V. Bowman, 


. 86 


V. Spruill, 




254, 


255 


V. Fahnestock, 


. 157 


Hinkle i'. Currin, 




, 


19 


V. Inman, . 


. - . 306 


Hinsdil v. Murray, 




. 


269 


V. James, . 


. 121 


Hinson v. Pickett, 




, 


399 


V. N. Y. & N. H 


. Railroad 


V. Partee, 






HI 


Co., . 


. 198 


Hinton v. Cole, . 






309 


V. Oglander, 


. 31 


Hitch V. Davis, . 






309 


Hook V. Craighead, 


. 168 


V. Fenby, . 


397, 


417 


419 


V. Stone, . 


. 241 


Hitchcock V. Harrington, . 




114 


Hooker v. Pynchon, 


. 77 


V. St. John, 




241 


Hooly V. Hatton, 


. 104, 105 


r. Skinner, 


230 


233 


Hooper v. Gumm, 


6 


Hite V. Hite, 




103 


V. Reyster, 


. 319 


Hitt V. Holiday, . 




113 


Hoover v. Epler, 


. 270 


V. Ormsbee, 


, 


363 


V. Hoover, 


254, 263, 275 


Hobart v. Frisbie, 




303 


V. Reilly, 


. 168 


Hobbs V. Parker, 




177 


Hope v.Brinckerhoff, 


. 413 


Hobday v. Peters, 


. 


176 


V. Carnegie, 


. 198 


Hockenbury v. Carlisle, 




184 


V. Fox, 


. 313 


Hocker v. Gentry, 




136 


Hopgoodw. Parkin, 


61 


Hoday v. Hound, 




167 


Hopkins v. Forsyth, 


. 268 


Hodges t'. Mullikin, . 




364 


V. Garrard, 


. 153 


V. N. E. Screw Co., 




397 


V. Hopkins, 


. 317 


Hodgman v. Smith, . 


. 


239 


V. Mazyck, 


. 168 


Hoen V. Simmons, 




82 


V. McEldery, 


. 351 


Hoes V. Van Hoesen, . .* 


261 


263 


V. McLaren, 


. 157 


Hoff's Appeal, . 




261 


Hopkinson v. Lord Burghley, . 15 


Hoffman v. Livingstone, . 


196 


356 


V. Rolt, 


. 110 


V. Postil, . 




308 


Hopkirk v. Paige, 


. 317 


V. Savage, . 




231 


Hopper V. Hopper, 


77-87 


V. Smith, 


, 


376 


Matter of. 


. 297 


Hogan V. Jacques, 




33 


Hopping V. Burnham, 


. 153 


Hoge V. Hoge, . 


188 


248 


Hopwood V. Hopwooc 


, . .105 


Hoitt V. Webb, . 




61 


Horn V. Keteltas, 


. Ill 


Holden v. McMakin, . 


243 


246 


V. Thomas, 


. 356 


V. Pike, . 




270 


Home V. Lythe, 


. 40 


Holderstaffe v. Saunders, . 




194 


Horsburg v. Baker, 


. 404 


Holdin V. Durbin, 


, 


39 


Horton v. The Church, . . 203 


Hole V. Barlow, . 




211 


Horton's Appeal, 


. 242, 363 


Holgate V. Palmer, 


, 


364 


Hosack V. Rogers, 


. 350 


Holliday v. Riordon, . 




336 


Hosford V. Merwin, 


. 230 


Hollister v. Barkley, . 196, 


356, 


379 


Hotchkiss V. Fortson, 


. 183 


HoUoway v. Holloway, 




217 


Hotten V. Arthur, 


. 216 


V. Moore, . 


, 


20 


Hough V. Richardson 


. 157, 177 


Hollsclaw V. Johnson, 


, 


335 


Houghton, Ex parte. 


33 


Holmes v. George, 




196 


V. Houghton, . . 184 


V. Hawes, 




243 


House V. Falconer, . 


. 232 


V. Holmes, . 20, 21, 


230 


V. Thompson, 


. 272 


V. Logan, 


, 


286 


Houseal & Smith's Appeal, . 243 


Holridge v. Gillespie, 




113 


Houston V. The Branch Bank, . 268 


Holroyd v. Marshall, . 


54, 


110 


Hovey v. Halcomb, 


. Ill 


Holsman v. The Boiling Spring 




How i;. Mortell, 


. 194 


Co., .... 


199 


211 


Howard v. Edgell, 


. 79 


Holt V. Bank of Augusta, . 




356 


V. Henriques, 


. 217 


V. Robertson, 




268 


V. Lee, . 


. 211 


Holton V. Meighen, . 




111 


Howe V. Harvey, 


. 302 


Holyoke v. Mayo, 




240 


V. Hunt, 


77,84 


Homer v. Hanks, 




402 


V. Rogers, 


86 


Honeywood v. Forstei 


"> 




96 


V. Russell, 


. 386 



Iviii 



TABLE OF AMERICAN CASES. 



Howell V. Ashmore, 
V. Baker, 
V. Harvey, 
V. Ransom, 
V. Sibring, 
Howells V. Jenkins, 
Howey v. Goings, 
Hoxey v. Carey, 
Hoxie V. Carr, . 
Hoy V. Bramhall, 

V. Hansborough, 
V. McMurry, 
Hoye V. Brewer, 
Hoyt V, Hammekin, 
V. Hilton, 
V. MacKenzie, 
Hozen v. Darling, 
Hubbard v. Goodwin, 
Hubble V. Perrin, 
Hudson V. Barrett, 
V. Cline, 
V. Hudson, 
V. Isbell, 
HuflFman v. Hummer, 
Hu^jer V. Huger, 
Huggins V. Hall, 
Hughes V. Blake, 
V. Cook, 
V. Edwards, 
V. Hughes, 
V. U. S., 
Hulbert v. McKay, 
Hull V. Hull, 

V. Sturdivant, 
Hulme V. Tennant, 
. Hultz V. Wright, 
Humber v. Rector of T 
Hume V. Pocock, 
Humes v. Shelly, 
Hummer v. Schott, 
Humphrey v. Foster, 

V. Phinney, 
Humphreys v. Leggett, 
Hundley v. Mount, 
Hunley v. Hunley, 
Hunn V. Morton, 
Hunt V. Bass, 

V. Elmes, . 
V. Freeman, 
V. Godkin, 
V. Hamilton, 
V. Hunt, . 
V. Mansfield, 
V. Moore, . 
V. Penrice, 
V. Rousmanier, 
V. Smith, . 
V. Townsend, 
V. White, 
Hunter v. Bales, 



15 



1, 243 
1 



26 



61, 



14,1 



4 
248 
243 
184 
309 

96 

230 

346 

246 

3, 270 

T7 
321 
1, 263 
364 
280 
214 
258 

42 
243 
241 
375 

61 
111 

84 
285 
315 

21 
309 
7, 153 
287 
1, 188 
385 
263 

77 

43, 45 

106 

rin. Church, 303 

84 
121 
128 
375 
233 
198 
153 
314 
390 
55, 61 

15 

85 
240, 344 
248 
183 
270 
177, 183 
338 
168 
399 
272 
172 

81 



15 



Hunter v. Clark, . . .268 

V. Hubbard, ... 62 

Hunter's Ex'rs. v. Spotswood, . 222 

Hunton v. Piatt, . . . 310 

Hurd V. Case, .... 403 

Hurlburd v. Freelove, . . 397 

Hurlbut V. Phelps, . . .106 

Hurter v. Bobbins, . . .329 

Hurst V. Fisher, . . .136 

V. Sheldon, . . .203 

Hussey v. Dole, . . . 312 

Huston V. Hamilton, ... 32 

V. McCarty's Heirs, . 312 

Hutcheson v. McNutt, . . 82 

Hutchins v. Hope, . 196, 227, 356 

Hutchinson v. Browne, . 177, 183 

V. Hutchinson, . 33 

V. Shepperton, . 193 

Hutton IK Duey, ... 45 

Hyer v. Little 363 

Hyman «j. Devereux, . .110 

V. Kelly, . . .121 

Hynes v. Stewart, . . . 240 



Iddings V. Bruen, 
Iglehart v. Crane, 
Imlay v. Huntingdon, 
Inbusch V. Farwell, 
IngersoU v. Kirby, 
Inglessi v. Spartali, . 
Inglis V. Trustees of Sailor 

Harbor, . 

Ingraham v. Baldwin, 

V. Regan, . 

Ingram v. Kirkpatrick, 

V. Phillips, . 

Innes v. Erans, . 

V. Jackson, 

V. Lansing, 

V. Sayer, . 
Ins. Co. V. Union Canal Co 
Irick V. Black, . 
Irvin V. Davidson, 

V. Smith, . 
Irvine v. Forbes, 
Irving V. Hughes, 
Irwin V. Harris, 

V. Ivers, . 

V. Planters' Bank, 

V. Tabb, . 
Isham V. Bennington Iron 
Ives V. Armstrong, 

V. Harris, . 
Izard V. Bodine, 



Jackman v. Ringland, 
Jacks V. Nichols, 
Jackson v. Cutright, . 

V. Edwards, . 

V. French, . 



. 61 

153, 270 

40, 42, 46 

. 243 

. 310 

10 



Snug 



86 



65 

. 182 

. 303 

. 31 

. 153 

. 337 

. 173 

. 243 

. 97 

. 77 

. 268 

, 210 

. 153 

, 239 

. 198 
59, 61 

. 33 

. 168 

. 95 

. 153 

. 88 

. 46 

. 386 



33 
363 
, 346. 347 
' 232 
6 



Co., 



TABLE OF AMERICAN CASES, 



Ux 



Jackson v. Forest, 


, 




310 


V. Grant, 




403 


V. Inabinit, . 




6 


V. Jackson, . 


285, 286 


V. Leek, 




153 


V. Ligon, 
V. Lodge, 
V. Matsdorf, . 


'. 88 

. 114 

83. 101 


V. Moore, 




28 


V. Pavne, 




172 


V. Phillips, . 




67 


r. Sharp, 




153 


Jackson's Assignees v. Cutright, 304 
Jacobs V. Locke, ... 84 


V. Morange, 
V. Richards, . 




168 
183 


Jacobson v. Blackhurst, 




205 


James r. Bostwick, . 




240 


V. Brown, 




270 


I'. Dixon, 




210 


V. Gibbs, 




48 


t'. Holmes, 




184 


V. Hubbard, . 


27 


0, 272 


V. McKarnon, 


303, 305 


V. State Bank, 




85 


James River v. Littlejohn, 
Jamison v. Bradj, 




316 
45 


V. Glascock, 




61 


Jaques v. Methodist Church, 




46 


Jarvis v. Brooks, 




243 


V. Dutcher, 




123 


V. Palmer, . 334 


335, 339 


Jauretche v. Proctor, 




31 


JefiFeryes v. Purday, . 




215 


Jencks v. Alexander, . 


33, 101 


Jenison v. Hapgood, . 
Jenkins v. Bodley, 




61 
162 


V. Eldredge, 61, 248, 


305, 379, 




397, 399 


V. Jenkins, . 




233 


V. Pye, . 


184, 186 


V. Walter, 




57, 60 


Jenkyns v. Bushby, . 
Jennings v. Broughton, 
V. Patterson, 




6,7 

177 
258 


V. Springs, 
Jervis v. Smith, . 






346 
272 


Jerome v. Jerome, 






23 


V. Ross, . 






210 


Jewett V. Davis, . 






. 176 


Ex parte, 
Jobe t'. O'Brien, . 






285 
270 


John V. Jones, . 






269 


Johns V. Reardon, 




17 


3, 313 


V. Erb, 




37 


6, 377 


Johnson r. Bennett, 






. 136 


V. Brown, 


. 114 


31 


0, 315 


V. Candage, 


, 




. 113 


V. Clendenin, 




360 


V. Cushing, 






99 



Johnson v. Dougherty, ... 33 

V. Fesemeycr, . . 184 

V. Harman, . . .113 

V. Hubbell, . . 77, 86 

V. Johnson, 208, 251, 309 

V. McGruder, . . 86 

V. Noble, . . . 232 

V. Rankin, . . .317 

V. Richardson, . .110 

V. Ronald, ... 28 

». Vail,. . . .313 

V. Walker, . . .191 

V. Williams, . . . 270 

Exr's. ». Clark, . .111 

Exr's. V. Ketchum, . 227 

Johnston w. Gray, . . Ill, 112 

V. Glancy, ... 86 

V. Rowlands, . . 31 

V. Van Dyke, . . 233 

Johnstone v. Earl of Harrowby, 105 

Jpice V. Taylor, .... 177 

Jones V. Beach, . . . 172, 173 

V. Bos. Mill Corp., . . 192 

V. Bradshaw, . . .19 

V. Bridge, . . .182 

V. Bullock, . . 220, 364 

V. Cowles, . . . 303 

V. Creveling's Exr's., . 104 

V. Dougherty, . . . 355 

V. Evans, . . . .182 

V. Jones, . . 93, 95, 244 

V. Kearney, . . .176 

V, Lynds, . , . .313 

V. McKee, . . .248 

V. MaflFet, . . . .37 

V. Mason, . . 106, 363, 392 

V. Myrick, . . .270 

V. Noble, .... 82 

V. Plummer, . . . 136 

V. Smith, . . . .402 

V. Stockett, . . 38, 287 

V. Whitehead, . . . 208 

Jopling V. Dooley, . . . 179 

Jordan v. Money, . . . 363 

r. Deaton, ... 77 

Jordon v. Stevens, . . 177, 190 

Josey V. Rogers, . 17, 402, 403 

Joslyn V. Wyman, . . .110 

Joy V. Wirtz, . . . ,323 

Joyce V. De Moleyns, . . . 162 

Judah V. Brandon, . . . 258 

Judd t'. Seaver, . . .20, 363 

Judge V. Wilkins, . . . 174 

Judson V. Gibbons, . . . 37 

Julio V. Ingalls, .... 239 

Justices of Pike Co. v. Griffin 

and West Point Plank Co., . 210 
Juvenal v. Jackson, . . . 151 
Juzan V. Toulmin, . . 174, 177 



Ix 



TABLE OP AMERICAN CASES. 



Kane v. Gott, 


. 136 


Kiddall v. Trimble, , 


234 


Matter of, . 


287, 288 


Kidder v. Kidder, 


106 


Kauffelt V. Bowes, 


. 128 


Kidney v. Coussmaker, 


95 


Kaufman v. Crawford, 


. 285 


Kilpatrick v. Kilpatrick, . 


128 


Kavanaugh v. Thompson, 


. 96 


Kimberly v. Fox, 


202 


Kearney v. Harrell, . 


. 376 


V. Jennings, 


207 


V. Macomb, . 


93, 111 


V. Sells, 


335 


Keeler v. Eastman, 


' . 208 


Kimmel v. McRight, . . 3 


3, 101 


Keim v. Taylor, . 


. 364 


Kincheloe v. Kincheloe, 


23 


Keinck v. Price, 


. Ill 


King V. Baldwin, 


268 


Keisselbrock v. Livingston 


e, 85, 106 


V. Bardeau, 


90 


Keith V. Horner, 


, 129 


V. Bill, 


157 


V. Trapier, 


233, 235 


V. Clark, . 


389 


Kekewich v. Manning, 


53, 55, 80 


V. Cloud, . 


364 


Keller v. Fisher, . 


. 88 


V. Donnelly, 


37 


Kelley v. Payne, 


. 309 


V. Doolittle, 


168 


Kellogg V. Smith, 


. 151 


V. Hamilton, 


84, 85 


Kellum V. Smith, 


33, 111 


V. Mitchell, 


32 


Kelly V. Greenleaf, 


; 221 


V. Morford, 


77 


V. Jackson, 


6 


V. Mullin, . 


59 


V. Morris, . 


. 216 


V. Phillips, 


38 


V. Paine, . 


. 309 


V. Ray, 


8 


Kelsey v. Western, 


261, 263 


V. Ruckman, 


88,90 


Kemble v. Kean, ' . 


. 207 


V. Savery, , 


184 


Kemp V. Carnley, 


. 241 


V. Talbot, . 


57 


V. Mitchell, 


. 399 


V. Trice, . . ' . 


303 


Kendall v. Honey, 


. 235 


V. Woodhull, 


65 


V. Man, . 


. 33 


of Sicilies v. Willcox, 


23 


V. New Eng. Carpi 


Jt Co. 61 


of Spain v. Hallett, , 


2 


V. New England C 


0., . 272 


Kingman v. Sparrow, . 


233 


Kennard v. George, . 


. 168 


Kinlock v. Hamlin, 


240 


Kennebec R. R. v. Portland 


R.R., 310 


Kinnaman v. Henry, . 


344 


Kennedy v. Davis, 


. 317 


Kinsey v. Woodward, 


94 


In re, . 


. 283 


KinsleriJ. Clarke, . . 20 


8, 356 


Johnson, 


. 297 


Kinter v. Jenks, 


31 


V. Kennedy, 17 


6, 202, 241, 


Kip t'. Bank of New York, . 


60 


'243, 3( 


)3, 310, 316 


Kirby v. Dalton, 


233 


V. Nedrow, . 


. 94 


V. Harrison, 


174 


V. Ware, 


. 78 


V. Schoonmakef, 


243 


Kenny v. Udal, . 


48 


Kirk V. Hodgson, 


364 


Kent V. Jackson, 


. 320 


Kirkman v. Bank of America, 


268 


V. Lasley, . 


. Ill 


V, Vaulier, . 


222 


. V. Plummer, 


. 153 


Kirkpatrick v. Atkinson, . 


377 


Kenton v. Vandergrift, 


. Ill 


V. McDonald, . 


33 


Kern v. Hazlerigg, 


. 129 


V. Rogers, 


263 


Kerney v. Kerney, 


. 168 


V. White, 


339 


Kerns v. Chambers, . 


. 269 


Kirksey v. Fike, 


129 


V. Swope, 


151, 153 


V. Means, 


309 


Kerr v. Day, 


. 141 


Kisor V. Stancifer, 


334 


V. Gilmore, 


. Ill 


Kitchen v. Herring, . 


83 


V. Potter, . 


. 239 


Kittera's Estate, 


257 


V. Purdy, . 


. 82 


Kittle V. Van Dyck, . 


233 


V. Steamboat Co., 


, 221 


Kittredge v. Claremont Bank, 


8 


Ketchum v. Stout, 


. 84 


V. Emerson, 


198 


Kettletas v. Gardner, . 


. 283 


Klines' Appeal, 


33 


Key V. GriflSn, . 


97 


Estate, 


180 


V. Lambert, . 


. 312 


Knicherbacker v. Harris, . 


363 


Keys V. Wood, '. 


. 110 


Knight V. Boughton, ^ 


29 


Keyzey (Case of), 


. 261 


V. Bunn, 


168 


Kidd V. Cheyne, 


. 418 


V. Knight, . .26 


3, 274 



TABLE 


OF 


AME 


Knight V. Majoribanks, 




61 


Knoll V. Harvej'. 




86 


KnoflF V. Thompson, . 33 


, lo'i, 


150 


Knowles v. Lawton, . 




272 


V. Rablin, 


. 


113 


Knowlton r. Walker, . 




111' 


Knox t'. Campbell, 


. 


368 


V. Smith, . 




203 


Knuckolls r. Lea, 




177 


Kopler t". Los Angeles, 


. 


196 


Kortright r. Cadv, 




110 


Kramer v. Arthurs, . 


162 


246 


k Rahm's Appeal, 


. 


268 


Krider v. LaflFerty, 


151 


153 


Krupp V. SchoU, 




180 


Kuhn r. Newman, 


, 


44 


Kunkell v. Markell, . 


, 


310 


Kunkle v. Wolfersberger. . 




111 


Kuypers v. Ref. Dutch Church, . 


335 


Kyle V. Roberts, 




240 


Kyles V. Tail, . 




128 


Kyner v. Kyner, . 


269 


,270 


Ladd t". Harvey, . 


. 


352 


Ladue v. The R. R. Co., . 


, 


110 


Lafarge Insurance Co. v. Bell, . 


272 


Lafone r. Falkland Islands 


Co., 


6 


Laidlaw v. Organ, 


. 


179 


Laight V. Morgan, 




335 


Lainhart v. Reilly, 




322 


Laird r. Birkenhead Railway 


Co., 


77 


Lake v. Dowd, 




123 


Lally V. Holland, 




153 


L'Amareaux v. Crosby 




290 


Lambert v. Lambert, . 


, 


402 


Lamborn v. The Covington 


Co., 


219 


Lanahan v. Lathrobe, 




95 


Lancaster Co. Bank v. Albright, 


179 


V. Dolan, . 




46 


Re, . . . 




301 


Land v. Cowan, . 




309 


Landes v. Brandt, 




153 


Lane i'. Dickerson, 




111 


V. Latimer, 




174 


V. Stebbins, 




18 


V. Stevens, 




339 


Lang V. Brown, . 


386 


, 387 


f. Waring, 




246 


Langdon f. Astor's Executors, . 


104 


V. Goddard, . 




8 


V. Paul, 




114 


V. Roune's Adm'rs 


J • 


228 


Langstaff v. Rock, 




268 


Lanier r. Hill, . 




177 


V. Wyman, 




171 


Lanning i-. Smith, 




363 


Lansing v. Eddy, 




198 


V. Russel, 




183 


Lannm v. Steel, 




345 


Lapreese v. Falls, 




376 



Ixi 



Large v. Van Doren, 
Larkin t>. Mann, 
Larkins v. Biddle, 
r. Rhodes, 
Larrabee v. Larrabee 
Larrowe v. Beam, 
Laselle v. Barnett, 
Lathrop v. Gilbert, 
Lathrop's Appeal, 
Latimer v. Hanson, 
V. Rogers, 
Latting v. Latting, 
Laughlin v. Ferguson, 

V. Lorenz Adm'r, 
Lavender v. Lee, 
Laverty v. Moore, 
Lavette v. Sage, 
Law V. Ford, 
Lawrence v. Beaubin, 
V. Hammitt, 
I'. Lawrence, 
Lawrens v. Lucas, 
Lawson v. Morton, 
Lawton v. Campion, . 
Leach v. Beattie, 
Leacraft v. Dempsey, 
Leacroft v. Maynard, 
Leadenham v. Nicholson 
Leaf V. Coles, . 
Lear v. Chouteau, 
Lear's Ex'rs. v. Edson, 
Leathart r. Thorne, . 
Leather Cloth Co. v. The 
can Leather Cloth Co., 
Leavitt v. Steenbergen, 

V. Wooster, . 
Leaycraft v. Heddon, 
Lebby f. Stanley, 
Lerkensdorfer v. Delphy, 
Ledyard v. Chapin, . 

v. Johnson, 
Lee r. Baird, 

V. Beatty, . 

V. Evans, 

V. Howe, 

V. Kirkpatrick, . 

V. Lee, 

V. Pindle, . 

V. Randolph, 
Leeds v. Marine Ins. Co. of 

andria, . 
Lees' Adm'rs. v. Reed, 
Lefevre v. Laraway, . 
Le Fort v. Delafield, . 
Legare v. Ashe, 
Leggett V. Dubois, 

V. Perkins, . 
V. Postley, . • 
Leiby v. Wolfe, 
Leigh V. Clark, , 



168 



110 

231 
, 310, 346 
. 33 
186, 188 
. 162 
. 151 
. 33 
. 269 
. 37 
. 232 
. 309 
. 270 
. 241 
. 168 
. 81 
. 183 
. 243 
. 168 
. 238 

167, 363 
. 84 
. 233 
. 189 
. 232 
. 339 
. 105 
. 136 

243, 292 
. 78 

168, 363 
. 320 



Ameri- 



217 
364 
263 

46 
128 
168 
110 
250 
197 
376 
111 

91 
150 
416 
392 

37 



Alex- 



. 20 
. 227 
. 61 
. 335 
, 248 
33, 42 
46 
18, 19 
. 153 
. 196 



Ixii 



TABLE OF AMERICAN CASES. 



Leigh V. Crump, 




11, 84 


Littlefield v. Smith, . 




53 


V. Savidge, 






272 


V. Tinsley, 




84 


Leight V. Leight, 






96 


Littlejohn v. Gordon, 




128 


Leiper's Exr's. v. Irvine, 






142 


Livermore v. Aldrich, 




33 


Leisenring v. Black, . 






184 


Livingston v. Clarkson, 




231 


Lemaster v. Burkhart, 






304 


' V. Harris, 




334 


Le Neve v. Le Neve, 151, 153 


'157 


, 158 


V. Hubbs, 




417 


Lennig's Estate, 




261 


In re, 




296 


Lenox v. Notrobe, 51, 61, 233 


281 


,352 


V. Livingston, 


101, 


196, 






363 


199, 210, 263, 


274, 275, 


Le Roy v. Servis, 




334 




33 


5, 356 


V. Veeder, 






335 


Matter of, 




293 


Lesley v. Johnson, 






150 


V. Newkirk, 


263, 272 


V. Rosson, 






222 


V. Reynolds, 




208 


Lessig V. Langton, 






356 


V. Story, . 


126, 335 


Letcher v. Letcher, . 






33 


V. Tompkins, . 


107, 334 


V. Shrojder, 




54 


312 


Lloyd V. Attwood, . 151 


, 163, 165 


Lever v. Lever, . 






221 


V. Barr, . 




269 


Levert v. Redwood, . 






379 


V. Brewster, . 




309 


Leverton v. Waters, . 






230 


V. Carter, 




33 


Levy V. Levy, . 






65 


V. Galbraith, . 


27 


0, 272 


Lewellen v. Cubbold, 






180 


V. Hart, . 


, 


285 


Lewis V. Bacon, 






255 


V. Loaring, 




77 


V. Baird, 






153 


Lobdell V. Hayes, 




233 


V. Darling, 






263 


i'. Lobdell, . 




77 


V. Hilman, 






61 


Lockard v. Lockard, 198 


, 331, 344 


V. Leak, . 






356 


Lock V. Fulford, 




270 


V. Lewis, 




92, 97 


Locke V. Palmer, 


111, 123 


V. McLemore, . 






177 


Lockerson t'. Stilwell, 


. 


HI 


V. Matthews, . 






45 


Lockwood V. Fenton, 




282 


V. Mew, . 






157 


V. Lockwood, . 




121 


V. Moorman, . 






233 


V. Stockholm, . 




263 


V. Palmer, 






269 


V. Thorne, 




226 


V. Robards, 






111 


Lodwick V. Johnson, 




272 


Liddard v. Liddard, . 






31 


Logan V. Bond, 


244, 303 


Liddell v. Norton, 






12 


V. McGinnis, . 




77 


Lightner v. Mooney, . 






153 


V. Simmons, . 




180 


Ligon's Adm'r. v. Rogers, 






168 


Long V. Long, , 




183 


Lilford V. Powys, 






275 


V. Majestic, 


222, 315 


Lillard v. Turner, 






46 


V. Mulford, 


, 


232 


Lilly V. Kroesen, 






227 


V. Norcom, 


, 


286 


Lincoln v. Rutland, &c., R. 


R. 


Co. 


203 


V. Storie, . 




319 


Lindsay v. Etheridge, 




196, 


356 


Longworth v. Taylor, 




84 


V. Harrison, 






44 


Loomer v. Wheelright, 


173, 174 


V. Pleasants, 




33, 


138 


Loomis V. Brown, 




196 


V. Rankin, . 




, 


151 


Loomis's Estate, 




263 


Lindsey v. Bates, 




. 


129 


Lord V. Lowry, . 


. 


28 


V. James, 






20 


V. Morris, . 




110 


Linford v. Linford, . 






243 


V. Staples, 




270 


Lingan v. Henderson, 23, 303, 


304 


,309 


Lorillard v. Coster, . 


43, 136 






364 


Loudon V. Warfield, . 




208 


Lining v. Geddes, ^. 




210 


Lounsbury v. Purdy, 


, 


33 


Linker v. Smith, 






180 


Love V. Cobb, . 


, 


77 


Linkhouse v. Cooper, 






84 


Loveday, Ex parte, . 




29a 


Lippincott v. Stokes, 






100 


Lovegrove v. Cooper, 


252, 256 


Lister v. Hodgson, 






168 


Lovejoy v. Irelan, 


, 


312 


Litchfield v. Ready, . 






114 


Lovell V. Farrington, 


, 


304 


Little V. Co(»per, 






20 


V. Minot, 




56 


V. Marsh, 




196 


356 


Lovett V. Longmire, . 




331 


V. Price, . 




. 


198 


V. Steam, &c.. Ass., 


. 


363 



TABLE OF AMERICAN CASES. 



Ixiii 



Low V. Holmes, 


. 


230 


Lowe V. Lowry, 


. 


199 


V. Traynor, 




377 


Lowndes v. Chisholm, 


.' 118 


269 


Lowralle v. Menard, . 


. 


233 


Lowry v. Cox, . 




191 


V. Farmers' Bank 




251 


V. Muldrow, . 


, 


84 


V. Spear, 


. 


186 


Lowther v. Lowther, 


. 


77 


Loyd V, Read, . 




101 


Lozier's Ex'rs. v. Van 


Saun's 




Adm'rs., 




203 


Lucas V. Atwood, 




243 


V. Bank of Darien, 


19, 198, 


312, 
363 


V. Hickman, 


. 


360 


V. Lockhart, . 




31 


Luckett V. White, 




310 


V. Williamson, 


84, 86 


Ludlow V. Simond, 




221 


Lumley v. Wagner, . 


'. 81 


207 


Lunsford v. Bostion, . 




379 


Lupeer Co. v. Hart, . 


, 


199 


Lupton V. Janney, 




227 


V. Lupton, 


103, 263 


364 


Lushington v. Boldero, 




316 


Lyday v. Douple, 


. 


198 


Lyman v. Lyman, 


, 


270 


V. Ins. Co., 




168 


Lynch v. Cox, . 


, 


33 


V. Johnson, 




310 


V. Sumrall, 


, , 


20 


Lyne v. Guardian, 


, 


248 


Lynn v. Boiling, 


. 


363 


Lyon V. Baker, . 


. 


61 


V. McLaughlin, 


. 


199 


V. Richmond, . 




168 


V. Saunders, 




168 


V. Tallmage, 


. 


346 


Lyons v. Miller, 


20,21 


363 


Lyrely v. Wheeler, 


. 196 


356 


Lytle V. Pope, . 


. 157 


269 


McArtee v. Engart, . 




174 


McAuley v. Wilson, . 




69 


McBain v. McBain, 




230 


McBrayer v. Hardin, , 




208 


McCabe v. Bellows, . 




309 


McCalmount v. Rankin, 


. 176 


303 


McCainmon v. Petit, . 




33 


McCampbell v. McCampb 


eil, 263, 


275 


McCants v. Bee, 




61 


McCarty v. Pruet, 




128 


McCartney v. Garnhart, 




217 


McCaskle v. Amarine, 




153 


McCaughall i'. Ryan, 




65 


McCauly t>. McFarlane, 




244 


McClean, Matter of, , 




292 


McClellan v. Darrah, 




84 



McCllntic V. Manus, . . . 230 

McClung V. Beirne, . . . 270 

McClure v. Evans, , . . 105 

McClurg V. Fryer, . . . 268 

McCoUum v. Prewitt, . .197 

McConnel v. Holobush, , . 118 

McConnell v. McConnell, . 309, 312 

V. Read, , . .153 

V. Scolt, . . ,270 

McCord V. Ochiltree, . . 65 

McCormack v. Obannon, . . 269 

McCormick v. Malin, . .183 

McCormick's Adm'r. v. Irwin, . 269 

Appeal, . . 272 

McCosker v. Brady, . . 309 

McCoy V. Rhodes, . . .363 

McCrackan v. Valentine, . . 382 

McCrae v. Hollis, . . .188 

McCrea v. Purmort, . , . 303 

McCrocklin v. McCrocklin, . 45 

McCrory v. Foster, ... 33 

McCue V. Johnston, ... 86 

McCulloh V. Dashiel, • . 243 

McCoUough V. Irvine, . . 208 

V. W'ilson, . . 153 

V. Somerville, . 241 

McCumber V. Oilman, . .121 

McCunn v. Bolt, . . .269 

McDaniel v. Moorman, . . 182 

McDaniell v. Bell, . . .192 

McDermott v. Blois, . . . 335 

McDonald v. Black, . . .268 

V. McDonald, . . 308 

v. McLeod, . Ill, 363 

McDougald v. Dougherty, 346, 352, 

379, 383, 386, 389 

McDougall V. Dougherty, . . 399 

V. Miln, . . . 389 

McDowall V. Payton, . . 248 

McDowell V. Bank, . . . 269 

V. Bank of Wilmington, 21 

V. Caldwell, . . 286 

V. Graham, . . 303 

V. Lawless, . . 261 

McElfresh v. Schley, . . 92, 94, 95 

McElhatton v. Howell, . . 48 

McElwain v. Willis, . . .303 

McElwee v. Sutton, . . .389 

McFarland v. McDowell, . 196, 356 

McFenan v. Taylor, ... 85 

McGenee v. Jones, . . . 346 

McGinnis v. McGinnis, . 92, 272 

Appeal, . . .272 

McGinity V. McGinity, . . Ill 

McGlothlin v. Hemery, . . 309 

McGonegal v. Plummer, . .128 

McGowen v. Remington, . 77, 91 

McGrew v. Tombeckbee Bank, . 198 

McGuire v. McGowan, . . 33 

V. O'Halloran, . . 192 



Ixiv 



TABLE OF AMERICAN CASES. 



McHenry v. Cooper, . 

V. Hazard, . 
McHurdy V. McHurdy, 
Mclntire v. Hughes, . 

School V. Zan 
Company, 
Mcintosh V. Alexander, 
Mclntyre v 



. 113 

175, 200, 205 

. 254 

. 18 

Canal 

. 37 
. . 309, 310 
Trustees of Union 
College, 303, 309, 344 



V. Zanesville, 
McJilton V. Love, 
McKag^on's App., 
McKay v. Corrington, 

V. Green, , 
McKeen v. Field, 
McKelvey v. Truby, . 
McKennan v. Phillips, 
McKibbin r. Brown, . 
McKim V. Handy, 

V. Mason, 

V. Odom, 

V. White Hall Co., 

McKinley v. Irwine, . 
McKinney v. Miller, . 
V. Pierce, . 
McKinnie v. Rutherford, 
McKinstry v. Conly, . 
McKissick v. Pickle, 
McLane v. Johnson, . 
V. Manning, . 
McLard v. Liunville, . 
McLaren v. Stainton, 
V. Steapp, . 
McLaurin v. Wright, . 
McLellan v. Longfellow, 
McLenahan v. McLenahan 
McLeod V. Drummond, 
McLin V. McNamara, 
McLoud V. Roberts, . 
McLoughlin v. Sheppard 
McMahon v. Fawcett, 
McMaken v. McMaken, 
McManus v. The State, 
McMechan v. Griffing, 
McM orris v. Crawford, 
McMurtrie v. Bennett, 
McNair v. Picott, 
McNamara v. Dwyer, 
McNaughten v. Partridge, 
McNear v. Bailey, 
McNeil V. Magee, 
V. McNeil, 
V. Norsworthy, 
McNitt V. Logan, 
McNutt V. Strayhorn, 
McPherson v. Talbott, 
McQueen v. McQueen, 
McRae v. McKenzie, . 
McRaven v. Maguire, 



56 
198 

43 

88 

258 

345 

150 

37,45 

77 
391 
399 
221 
107, 344, 
347 
317 
270 
280 
317 
111 

67 
147 
176 
363 
198 
221 
111 
6,7 
261 
351 
222 
263 
111 
269 
314 
6 
153 

81 
82, 86 
110 
360 
240 
192 
192 
257 
111 
151 
243 
269 

96 
241 
153 



77, 



McRees' Adra. v. Means, . 30, 31 

McWhorter v. McMahon, . . 84 
McWilliams v. Herndon, . . 346 
MacAlpine v. Burnett, . . 128 
MacBride v. Lindsay, . . 319 

Macbryde v. Weeks, ... 88 
Macclesfield, Earl of, v. Davis, . 77 
Maccubbin v. Cromwell, 37, 58, 308 
MacDougald v. Maddox, . . 19 
Mack t'. Wetzlar, . . . 114 
Mackinnon v. Stewart, . . 31 
Mackreth v. Symmons, . 128, 129 
Macleod v. Annesley, . . 318 

Maclin v. Smith, . . . 286 

Macon, &c., R. R. Co. v. Parker, 197 
Mactier v. Lawrence, . 194, 259 

Maddox v. Dent, . . . 350 
V. Rowe, . . .77 
r». Simmons, . . 183 

Madiera v. Hopkins, . . .77 
Magdalen College v. Atty.-Gen., 69 
Magee v. Magee, ... 33 

Magill V. Brown, ... 65 
Magniac v. Thompson, . . 303 
Magoffin V. Holt, ... 88 
Magwood V. Johnston, . .46 
Mahana v. Blunt, ... 86 
Maher v. Bull, . . . .309 
Mahone v. Central Bank, . 196, 356 
V.Williams, . .118 

Mahoning Co. Bank v. Williams, 109 
Mahorner v. Harrison, . . 33 
Malin v. Malin, . . . 33, 317 
Malins v. Brown, ... 86 
Mallory v. Mallory, ... 33 
Mallow V. Hinde, . . .323 
Malmesbury v. Malmesbury, . 168 
Malzy V. Edge, . . .37 

Manchester v. Dey, . . 196, 356 
Mandeno v. Mandeno, . . 394 

Mandeville v. Riggs, . . .321 
Manes v. Durant, . . .180 
Mange v. Guenat, . . .12 
Manhattan Gas Co. v. Barker, . 196 
Mann v. Betterley, . . . 183 
V. Butler, . . . .321 
V. Higgins, . . . 243 
Manners v. Manners. . . 230 

Manning v. Drake, . . ' . 20 
V. Laboree, . . 233 

V. Manning, . . 61 

Mann's Exrs. i>. Falcon, . .111 
Mansell's Estate, . . .261 
Mantz V. Buchanan, . . . 233 
Many v. Beekman Iron Co., 303, 310, 

314 
Mapps V. Sharpe, . . .61 
Marberger v. Pott, . . .268 
Marble Co. v. Ripley, . . 82 

Marburry v. Madison, . . 8 



TABLE OF AMERICAN CASES. 



Ixv 



March v. Berrier, 


. 


. 285 


V. Davidson, . 


18, 19 


V. Ludlam, 


6 


('. Thompson, 


. 400 


Margaret v. Conestogo, 


. 400 


Alarine Bank v. Fulton Bank, . 57 


Ins. Go. V. Hodgson, 


. 197 


Mariott v. Handy, 


. 110 


V. Sam Badger, 


92, 96, 97 


Marlatt v. Warwick, . 


. 174 


Marquand r. N. Y. Man. Co 


, . 242 


Marsh r. Hague, 


103, 258 


i". Hunter, 


57, 58 


V. Lee, 


110, 162 


I'. Reed, . 


. 202 


V. Turner, 


. 128 


V. Wheeler, 


. 136 


Marshall v Billingsly, 


. 183 


V. Means, 


309, 310 


V. Riley, 


3 


V. Stephens, 


. 46 


Marston i'. Brackett, 


. 376 


Marten v. Van Schaick, 


. 243 


Martin i". Bell, . 


. 45 


V. Densford, 




. 258 


V. Dryden, 




. 321 


V. Greer, 




28, 33 


V. Jackson, 


II.- 


, 117, 157 


V. McBryde, 




. 303 


V. Martin, 




103, 310 


V. Melville, 




. 107 


V. Mowlin, 




. 110 


V. Pyeroft, 




. 87 


V. Sale, . 




. 153 


V. Weil, . 




. 310 


V. Wincoop, 




61 


Martinetti v. Maguire, 


. 213 


Marvin v. Elwood, 


205, 206 


V. Tittsworth, 


. Ill 


V. Trumbull, 


. 246 


Maryland, &c., Co. v. Wingert, . 363 


Mason v. Begg, . 


. 257 


V. Blair, 




. 86 


V. Connell, 




241, 242 


V. Man, . 




. 221 


V. Martin, 




. 363 


Matter of. 




. 290 


V. Peck, 




. 21 


V. Williams, 




. 183 


V. York, 




. 316 


Mason's Estate, 




261. 263 


Massey i-. Mclhvain, 




86 


V. Massey, 




28 


V. Parker, 




44 


Massie v. Greenhow, 




. 151 


Masters v. Prentiss, 




3 


Mastin v. Marlow, 




. 186 


Matlack v. James, 




, 243 


Matthews v Aiken, 




. 269 


V. Dragaud, 


59 


E 







Matthews v. Matthews, 
1). Ward, , 

Matthewson v. Clarke, 

Mattox V. Tremain, . 

Maude v. Rodes, 

Maulden v. Armistead, 

Maury i'. Lewis, 

Maxwell i". Hyslop, . 
V. Kennedy, 
V. Maxwell, 
V. Pittenger, 



230 

50 

242 

360 

243 

83 

379 

204 

303 

93, 230 

84, 183 

V. Whieldon's Adm'r., 28 

May V. Armstrong, . . 17, 403 

V. Eastin, . . . Ill, 389 

V. LeClaire, . . . 144 

V. Smith, .... 309 

V. Snyder, .... 177 

V. Williams, . . . 345 

Mayberry v. Brien, . . . 233 

Mayer v. Gulluchat, . . 61, 344 

Mayham v. Coombs, . . 153 

Mayne v. Baldwin, . . . 283 

I'. Griswold, . . 303, 309 

Mayo I'. Judah, .... 107 

V. Murchie, . . . 302 

Mayor, &c., of Basingstoke v. Lord 

Bolton, . . 237, 238 
of Beverly v. Att.-Gen. 71 

of Georgetown v. Alexaa 

dria Canal Co., . 
&c., of York f . Pilkinton, 
Meacham i'. Sternes, 
Mead v. Camfield, 

t'. Merritt, 
Meads v. Langdon's Heirs, 
Meason v. Kaine, 
Mechanics' Bank ».Levy, 10, 305,308, 

344 
V. Lynn, 
Meconkey v. Rodgers, 
Medlock v. Cogburn, 
Meeker v. Meeker, 
Mehl V. Von Derwulbeke, . 
Melchor v. Barger, . 
Melick V. Darling 
V. Melick, 
Melleesh v. Bridger, . 

V. Robertson, 
Mendes v. Guedella, . 
Meng V. Houser, 
Menude v. Delaire, 
Merced Mining Co. v. Freemont 
Mercer v. Newsom, 

I'. Stark, 
Merchants' Bank v. Davis, 
Meriwether i-. Bird, . 
Merriam o. Barton, . 
Merrick v. Gordon, . 
Merrill v. Bartlett, . 
Merrith v. Lambert, . 



211 

194 

61 

83 

198 

248 

33, 86 



308 

240 

292 

77 

77 

93 

93 

316 

274 

168 

58 

270 

28 

210 

61 

29, 33 

20 

223 

113 

239 

268 

184 



Ixvi 



TABLE OF AMERICAN CASES. 



Merritt v. Bartholick, 




110 


Matter of, 




194 


Mertens i'. Haigh, 




16 


Messervey v. Barelli, . 




320 


Metcalf t>. Cady, 




310 


Meth. Church v. Mayor, & 


c, of 




Baltimore, . 


198 


V. Remington, . . 


67 


V. Wood, 




83 


Meth. Epis. Ch. v. Jacques 


8, 33 


307 


Metier v. Metier, 


19, 


363 


Mevey's Appeal, 




270 


Miami Co. v. U. S. Bank, . 




272 


Michian v. Wyatt, . 30 


9, 313, 


346 


Michoud V. Girod, 




61 


Middleton v. Middleton, , 


263, 


274 


Milburn v. Guythur, . 




233 


Miles V. Bacon, . 




61 


y V. Durnford, 




251 


V. Miles, . 




363 


V. Smith, . 




315 


V. Wister, . 




103 


Milhau V. Sharp, 




211 


Milk V. Moore, . 




376 


Mill V. Hill, 




191 


Millard v. Hathkway, 




33 


Milledge v. Lamar, . 




233 


Miller t. Andress, 




240 


V. Beverleys, . 




61 


V. Bingham, 




44 


V. Blackburn, . 




33 


V. Chetwood, . 




85 


V. Gotten, 


176, 


303 


V. English, 




210 


V. Fenton, 


268, 


402 


V. Fitchthorn, . 




168 


V. Ford, . 




334 


V. Furse, . 




304 


V. Grandy, 




201 


V. Hartle, 




101 


V. Harwell, 


263, 


275 


V. Henderson, . 




106 


V. Henlan, 


h 


. 88 


V. Lincoln, 




118 


V. Lockwood, . 




110 


V. McCan, 


194, 


304 


V. Meetch, 




30 


V. Pearce, 




248 


V. Porter, 




65 


V. Saunders, . 


336, 


344 


V. Sawyer, 




269 


V. Sherry, 




157 


V. Thurgood, . 


94, 96 


V. Tolleson, 




363 


V. Wells, . 


168, 


185 


V. Whittier, 




386 


V. Womack's Adm'r 


3., . 


227 


Miller's Estate, . 




285 


Milligan v. Milledge, . 




322 


Milliken v. Dravo, . 




86 



Mills V. Argall, , . . .241 

V. Dennis, . . . 121, 285 

V. Gore, .... 363 

V. Lewis, .... 171 

Milnes v. Gery, . . . .77 

Milroy v. Lord, .... 80 

Miltenberger v. Morrison, . . 309 

Mims V. Macon, .... 128 

Miner v. Atherton's Executor, . 105 

Minturn v. Seymour, 78, 196, 356 

Mississ. & Missouri R. R. Co. v. 

Ward, 211 

Mitchell V. Bunch, . . 360, 3til 

V. Burnham, . .110 

V. Lennox, . . . 346 

V. Manufacturing Co., . 220 

V. Mitchell, . 201, 263, 274 

V. Oakley, . . .194 

V. Smith, ... 19 

V. Sproul, . . .269 

V. Wilson, ... 88 

V. Winslow, ... 54 

Mix w. Hotchkiss, . , 121,302 

Moale V. Buchanan, . . 85, 86 

Mobile Ins. Co. v. Huder, . . 270 

&c., R. R. Co.«. Talman, 310 

Mook V. Candiff, . . .198 

Moderwell v. Mullison, . . 240 

Mofht V. McDonald, ... 33 

Mohawk Bridge Co. v. Utica & 

Schenectady Railroad Co 
Mollan V. Griffith, 
Molyneaux v. Collier, 
Monell V. Dickey, 
V. Monell, 
Money v. Jordan, 
Monk V. Harper, 
Monro v Allaire, 
V. Taylor, 
Monroe v. James, 
Montague v. Dudraan, 
V. Lobdell, 
V. Turpin, . 
Montefiore v. Guedella, 
Montefiori v. Browne, 
Montgomery I'. Milliken, 
Moodie v. Bannister, 
Moody V. Payne, 
Mooers v. White, 
Moore v. Anderson, 
V. Appleton, 
V. Auditor, 
V. Beason, 
V. Bray, . 
V. Burrows, 
V. Cable. . 
V. Crofton, 
V. Connell, 
V. Gamble, 
V. Green, 



263, 



211 
275 
. 346 
. 282 
57, 58 

196, 356 
. 226 
61 
. 88 
. 37 
. 194 
. 317 
, 319 
. 105 
31, 151 
. 136 
. 314 
. 242 
. 227 
. 312 
. 208 
. 153 
. 110 
. 269 
81 

115, 118 
. 78 
. 110 
. 198 
. 303 



TABLE OF AMERICAN CASES. 



Ixvii 



Moore v. Holcomb, . 


. 




128 


Movan v. Hays, . 




28 


V. Hylton, 


196, 


356, 


363 


Mowatt V. Carow, 




400 


V. Isley, . 






269 


Muir V. Leitch, . 




243 


V. Mooney, 






48 


V. Schenck, 




53 


r. Moore, 


264, 


269, 


285 


I'. Trustees, 


248, 


303 


V. Murrah, 






315 


Mullin I'. Bloomer, . 




87 


V. Small, . 




, 


86 


Mullings V. Trinder, . 




84 


Moorer v. Korpmann, 




, 


77 


Mullock V. Jenkins, . 




320 


Morehouse v. Cotheal, 




, 


208 


Mulloy V. Young, 




363 


Moreland i'. Atkinson, 






168 


Mulock V. Mulock, 




309 


V. Lancasters, 






86 


Mulvauey v. Kennedy, 




210 


Morcnhaut v. Higuera, 






230 


Muraford v. Murray, . 


57 


, 61 


Moreton v. Harrison, . 




128, 


340 


Mundorf «. Kibourn, . 




77 


Morey v. Forsyth, 






317 


Munsell v. Loree, 




77 


V. Herrick, 






212 


Munson v. Munson, . 




202 


Morgan v. Annis, 






248 


Murphey v. Calley, 




111 


V. Higgins. . 




, 


184 


Murphy v. Clarke, 




310 


Matter of. 




, 


290 


V. Jackson, . 




319 


V. Morgan, 




115, 


415 


V. Nathans, . 




101 


V. Pope, 






103 


«• Trigg, 




111 


V. Scott, 






88 


Murray v. Ballou, 




157 


V. Smith, 




199, 


403 


V. Blatchford, 


363, 


400 


Morning Star i;. Selby, 






248 


V. Lord Elibank, . 




48 


Mornington v. Mornington, 




6 


1'. Lylburn, . 


144, 


157 


Morris v. Diilard, 




. 


302 


V. Murray, 




243 


V. Hoyt, 






88 


V. Tolland, . 




228 


V. Lewis, 




76 


, 79 


Murrell v. Goodyear, 




88 


V. Morris, 


55 


285 


287 


Murrill v. Neill, 


• 


243 


V. Nixon, 




111, 


363 


Musselman v. Eshelman, . 




61 


V. Olwine, 






272 


Mustard v. Robinson, 


233, 


454 


V. Parker, 




308, 


344 


Mutlow V. Mutlow, " . 




252 


& Essex R.R. Co. 


V. Blair, 


363 


Myers v. Hay, . 




107 


Morrison v Beckwith, 




. 


270 


V. Kenzie, 




21 


V. Hart, 




, 


304 


V. Myers, . 


57, 


287 


V. Kelley. . 






153 


V. Wade, . 




286 


V. Kurtz, 




243 


272 


/ V. White, 




114 


V. March, . 






151 








V. McLeod, . 




84, 


183 


Nace V. Boyer, . 




183 


V. Taylor, . 






269 


Nactrieb v. Harmony Settlement, 


184 


Morrison's Adm'r. v. Tenn. Ins 


.Co. 


,270 


Nagle V. IngersoU, 


136, 


139 


Morrow i'. Brenizer, . 


136, 


138 


139 


Nail V. Mobley, . 


, 


310 


V. Riley, 






240 


Nailer v. Stanley, 


. 


270 


Morse v. Martin, 






101 


Napier v. Catron, 




240 


Morss V. Elmendorf, . 




, 


85 


V. Elam, 




179 


Morton v. Adams, 




, 


61 


Nash V. Smith, . 


205, 


334 


V. Barrett, 






61 


Nathans v. Morris, 




61 


Mosby V. Taylor, 






107 


Natusch V. Irving, 




321 


V. Wall, . 




85, 


168 


Navulshaw v. Brownrigg, . 




222 


Moser v. Libenguth, . 






173 


Naylor v. Naylor, 




290 


Moses V. Murgatroyd, 




31, 


252 


Neale v. Hagthrop, . 


21, 


307 


Mosher v. Mosher, 






233 


V. Neales, 




78 


Moss V. Anglo-Egyptian 


Co. 




403 


1 Neatherley v. Ripley, 




86 


t'. Bainbrigge, . 






184 


! N. E. Bank v. Lewis, 




363 


t'. Hanson, 




, 


84 


1 V. Newport Steam 




Motley V. Jones, 






239 


Factory Co., 




310 


Mott V. Harrington, . 






184 


».- Stockholders, 


&c.. 


321 


Moulton V. Camroux, 






182 


NeflF i;. Miller, . 




272 


Mounce v. Byars, 


128 


346 


,347 


Netf 's Appeal, . 


57 


, 272 


Mount Holly Turnpike Co 


. V. 




Neill V. Keese, . 




33 


Ferree, . 


. 


. 


202 


Neilson v. McDonald, 




364 



Ixviii 



TABLE OF AMERICAN CASES. 



Neimcewicz v. Gahn, . 


173, 


269 


Nelson v. Barter, 




205 


V. Boyce, 


162, 


163 


V. Carrington, 




121 


V. Clay, . 




268 


V. Dunn, . 272 


402, 


403 


V. Everett, 




104 


%K Harris, 




220 


V. Lee, . . . 




285 


V. Owen, 


196, 


356 


V. Pinigar, 




208 


V. Robinson, . 




356 


V. Rockwell, . 




198 


Neptune Ins. Co. v. Dorsey, 




270 


Nesbit V. Lockman, . 


, 


184 


V. Moore, 




81 


Neve V. Pennell, 




165 


Neves v. Scott, . 


40, 42 


Neville v. Demeritt, . 




364 


V. Merchants' Insurance 




Company, 


. 


83 


Nevitt V. Gillespie, 


199, 


208 


Nevius V Dunlap, 




171 


Newberry, In re. 




282 


New Brunswick Co. v. Muggeridge, 






336 


Newcomb v. St. Peter's Church, 


65 


Newcomer v. Wallace, 




263 


Newenhara v. Pemberton, . 




47 


N. H. Savings Bank v. Colcord, 


268 


New Jersey Franklenite Co 


V. 




Ames, .... 




315 


Newland v. Rogers, . 




310 


Newlin v. Freeman, . 




46 


New London Bank v. Lee, . 


312, 


321 


Newman v. Chapman, 




157 


V. Kendall, . 


, 


315 


New Market v. Smart, 




62 


Newmen v. Bean, 




239 


Newport v. Cook, 


286 


287 


Newsom v. Bufferlow, 




168 


Newton v. Swazey, 




86 


New York Steamboat Co. v. 


t^ew 




Jersey Co., 




272 


Nice's Appeal, . 




153 


NichoU V. Trustees, . 


199 


392 


Nicholls V. Peak, 




156 


V. Roe, 




193 


Nichols V. Levy, 




42 


V. Perry Patent Arm 


Co., 


352 


NicoU V. Mumtord, 




268 


Matter of. 




281 


V. Ogden, 


. 


233 


Niles V. Anderson, 




336 


Nimmo v. Stewart, 




303 


Nisbett V. Cantrell, . 


. 


399 


Nix V. Bradley, . 




45 


Nixon V. Richardson, 


, 


361 


Nixon's Appeal, 




33 


Noble V. vVilson, 


196, 


356 



Nodine v. Greenfield 
Nokes V. Seppings, 
Norcross v. Widgery 
Norment v. Wilson, 
Norris v. Clymer, 

V. Hill, . 

V. Jackson, 

V. Vernon, 
North American Coal Co. v 



316 

350 

153 

231 

285 

268 

77 

241- 

Dyett, 

46, 346 

North Bait, Assn. v. Caldwell, 61 

Northampton Paper Mills v. Ames, 1 14 

Northrop v. Hatch, . . 3, 5, 334 

Norton v. Coons, . . . 269 

Norwich V. Hubbard, . .114 

&c. R. R. Co. V. Storey, 20 

Norwood V. Norwood, . .231 

Nourse v. Allen, . . . 309 

V. Prime, . . .227 

Noyes v. Blakeman, ... 46 

V. Sawyer, . 312, 321, 346 

Nugent V. Riley, , . . Ill-- 

t>. Vetzera, . . .282 
Nunn V. Fabian, ... 86 

V. Harvey, . . .286 

Nurse v. Lord Seymour, . . 85 
Nutbrown v. Thornton, . . 77 
Nutt V. Nutt, .... 93 

Obert V. Obert, .... 61 

Obrien v. Elliott, . . . 363 

Ocean Ins. Co. v. Fields, . . 3 

Ochiltree v. Wright, ... 58 

O'Connor v. Debraine, . . 360 

V. Tack, ' . . 4, 15 

Odenbaugli v- Bradford, . .Ill 

Offenhouse v. Burleson, . . 86 

Ogden V. Astor, 179, 227, 228, 239, 246 

V. Glidden, . . .270 

Oglander v. Oglander, . . 39 

O'Hara v. Shepherd, 408, 412, 415, 418 

O'Harra v. Cox, . . . 335 

Ohio V. Baum, .... 82 

V. Ellis, . . . .302 

Ins. Co. V. Ledyard, . . 153 

V. Ross, . . 153 

Life Ins. Co. v. Winn, 269, 389 

Okeson's Appeal, . . . 275 

Oldham v. Oldham, . . .183 

V. Rowan, , . .317 

Olds V. Cummings, . . 110, 144 

Olive V. Dougherty, ... 33 

Oliver v. Mutual Comm. Marine Ins. 

Co., . . . .168 
V. Palmer, . . 23, 312 
V. Piatt, .... 310 
Onslow V. Wallis, ... 32 
Ontario Bank v. Schermerhorn, 346 
Oppenheim v. Leo Wolf, . . 205 
Orcutt V. Orms, .... . 339 



TABLE OF AMERICAN CASES. 



Ixix 



Orear v. Tanner, 
Orleans v. Chatham, 

V. Phoebus, 
Ormsbee v. Davis, 
Ormsby r. Bakewell, 
Orton V. Smith, . 
Osbora v. Carr, . 

V. Phelps, 
Osborne v. Bank of United 

I'. Endicoit, 
V. Taylor, 
Osgood V. Franklin, 
Ostell i\ Lepage, 
Oswald V. McGehee, 
Otes V. Sill, 
Otlej- I'. Havilaud, 
Overholt's Appeal, 
Owen V. Hotnan, 

V. Paul, . 
Owens V. Cowan, 

V. Miller, 

V. Ranstead, 
Owing's Case, 
Owings t'. Baldwin, 
V. Emery, 
V. Hull, 
Owongs V. Myers, 
Oxford's (Earl of) case, 
Ozley V. Ikelheimer, 

Packer v. Sunbury, &c., R 

Padbury v. Clark, 

Padwick v. Hurst, 

Page V. Allen, 
V. Cox, 
V. Page, 
Re, . 

Pahlman v. Graves, 

Pain V. Coombs, 
V. Packard, 

Paine t*. Wilcox, 

Pallen v. Agric. Bank 

Palmer v. Guernsey, 
V. Harris, 
V. Richardson, 
r. Van Doren, 

Paunell v. Farmers' Bank, 

Pardee v. De Cala, 

Parish v Lewis, 
V. Sloan, 

Park V. Ballentine, 
?'. Johnson, 

Parke v. Seewright, . 

Parker v. Carter, 

V. Culvertson, 
V. Foy, . 
V. Gilliam, 
V. Nightingale, 
V. Parker, 



28 
. 233 

241, 242 
. 364 
. 198 

162, 163 

85, 172 

States, 

20, 363 

. 33 

. 203 

79, 174 

. 260 

. 177 

123, 150 
. 114 

243, 246 
. 352 

166, 167 
. 138 
. 268 
. 198 
. 291 
84, 86 
. 208 
. 303 
. 157 
. 194 
. 45 

R., . 356 

96 

. 222 

. 313 

. 246 

21, 33, 101 

. 301 

. 243 

86 

. 268 

. 87 

270, 272 

. Ill 

. 217 

86, 87 

. 364 

. 121 

. 373 

. 243 

310, 335 

. 312 

79 

. 86 

6, 304, 305 
. 268 
. 151 
. 251 
. 208 
. 86 



Parker v. Pierce, 


, 


153 


V. Taswell, 




77 


V. Vose, . 




61 


V. WiUs, 


. 


86 


V. Winipeseogee Lake Cot 




ton and Woollen Co 


J 


210 


Co. r. Jewell, 




128 


Parkhurst v. Cummings, . 




115 


V. Van Courtland, 


86, 91 


Parkin v. Thorold, 


87, 88 


Parkinson v. Trousdale, 


. 


8 


Parkist v. Alexander, 




153 


Parkman v. Welch, . 




270 


Parmelee v. Lawrence, 




111 


Parret v. Shaubhut, . 




153 


Parrish v. Coons, 


77 


363 


Parson v. Bedford, 




376 


V. Bowne, 




335 


Parson's Adm'r. v. Wilson, 




167 


Parsons v. Parsons, . 




48 


Partridge v. Havens, . 


33, 


101 


Pascalis v. Canfield, . 




252 


Patchin v. Lamborn, . 


, 


88 


Paterson & Hudson River R. 


R. 




Co. V. Jersey City, . 


. 


199 


Patterson v. Ackerson, 


. 


376 


V. Chalmers, 




268 


p. Gaines, . 


310 


363 


V. Hobbs, . 




21 


V. Patterson, 


251 


334 


». Scott, . 263, 


275 


276 


V. Yeaton, . 




86 


Pattison v. Blanehard, 




2.39 


V. Hull, 




392 


V. Shaw, 




315 


Patton V. Ash, . 




364 


V. Borough, . 


151, 


153 


V. McClure, 


. 


86 


r. Schooner Randolph, . 


268 


Patty V. Pease, . 




270 


Paul V. Fulton, . 




151 


V. Squib, . 




61 


Paulding v. Watson, . 




363 


Paulin V. Kaighn, 




268 


PaulUng t>. Sturgus, . 




21 


Pawling V. Jackson, . 




192 


Paxtoa V. Harner, 




270 


Payne v. Matthews, . 




243 


Paynes v. Coles, 




363 


Payton t». Smith, 




268 


Peabody. v. Tarbell, . 




33 


Peace v. Hains, . 




106 


Peachy v. Somerset, . 




107 


Pearce v. Morris, 




113 


t". Olney, 




198 


Pearl v. Nashville, 


221, 


222 


Pearpoint v. Gratiam, 




241 


Pearse v. Dobinson, . 




331 


Pearson v. Benson, 




184 


V. Daniel, 




151 



Ixx 



TABLE OF AMERICAN CASES. 



Pearson v. Darrington 


, 


. 402 


Perry v. Parker, . 


, 


195 


V. Diickham, 


. 269 


Person v. Nevitt, 


, 


418 


V. Rockhill, . 


. 31 


Persch v. Quiggle, 




310 


V. Seary, 




. Ill 


Peter v. Beverly, 


37 


136 


V. Seay, 




. Ill 


Peters v. Florence, 




168 


Peck V. Ashley, 




19, 20 


V. Goodrich, 


151 


153 


V. Craue, . 




. 199 


Peto V. Hammond, 




151 


V. Elder, . 




. 211 


V. Railroad Co., . 


81, 


207 


V. Ellis, . 




. 268 


Petrie v. Clark, . 




251 


V. Fisher, . 




. 246 


Pettit, Matter of, 




293 


V. Sanderson, 




. 399 


Pettitt V. Chandler, . 


10 


308 


V. Woodbridge, 




. 194 


In re, 




297 


Peckham v. Barker, 




. 86 


V. Jennings, . 


, 


20 


Peebles v. Reading, 




. 33 


Petty V. Petty, . 




180 


Peer v. Cookerow, 




. 406 


Peyton v. Alcorn, 


. 


285 


Pegg V. Corder, . 




. 77 


V. Smith, 




280 


V. Wisden, 




87, 88 


Phares v. Barbour, 


, 


268 


Pegler v. White, 




. 84 


V. Walters, 




233 


Peile V. Stoddart, 




. 17 


Pharis v. Leachman, . 




'250 


Pell V. Ball, 




230, 231 


Phelps & Spafford v. Curtis, 




23 


Pell a V. Schott, . 




. 331 


V. Green, 




231 


Penaberton v. Pemberton, 


92, 94 


V. Piatt, . 




13 


V. Riddle, 


. 317 


V. Pond, . 




136 


Pence v. Pence, . 


. 312 


V. Prothero, . 


. 


346 


Pendleton v. Fay, 


. 151 


V. Stewart, 




230 


V. Wambersie, 


. 220 


Phila. & Erie v. Catawissa R 


r'. 




Pennell v. Deflfell, 


57,60, 221 


Company, . 




321 


V. Roy, . 


. 198 


Wilra. & Bait. R. R 


V. 




Pennington v. Gibson, 


. 395 


Woelpper, . 




110 


V. Gittings, 


. 363 


Philbrook v. Delano, . 


, 


128 


V. Governor, 


. 167 


Philhower v. Todd, . 




194 


Pennock v. Coe, . 


. 54 


Philips V. Crammond, 


83 


142 


V. Swayne, . 


. 240 


V. Thompson,. 


. 


91 


Pennock's Estate, 


31 


Phillips V. Beldcn, 


227 


228 


Pennsylvania V. Wheeling B 


ridge 


V. Berger, 




83 


Co., 


. 211 


V. Cook, 




242 


Penny v. Cook, . 


55 


V. Edwards, . 




86 


V. Davis, . 


. 37 


V. Evans, 




193 


V. Turner, 


. 30 


V. Hollister, . 




177 


Pensenneau v. Pensenneau 


. 309 


V. Hudson, . 




200 


Pensoneau v. PuUiam, 


. ■ 111 


V. Hulsizer, . 


111 


389 


Pensacola R. R. v. Spratt, 


. 309 


V. Moore, 




183 


People V. Mercein, 


280, 283 


V. Phillips, . 


. 


222 


V. San Francisco, 


. 177 


V. Prevost, . 


8 


308 


V. Third Avenue Co 


., . 211 


V. Richardson, 




363 


V. Wilcox, 


280, 281 


V. Stauck, . 




77 


People's Bank v. Pearsons, 


. 268 


PhJIlipson V. Keary, . 




169 


Perin v. Carey, . 


. 198 


Philpott V. Elliott, 


. 


85 


Perkins v. Hadsell, 


86 


V. St. George's Hospital, 


67 


V. Hallowell, . 


196, 356 


Phoenix v. Ingraham, . 




20 


V. Kershaw, . 


. 269 


Phyfe V. Warden, 




77 


Matter of. 


. 293 


Piatt V. Oliver, . 


33 


.318 


V. McGavock, 


. 179 


V. St. Clair, 




270 


V. Nichols, 


. 363 


Pierce v. Brown, 




117 


V. Swank, 


. 151 


V. Fuller, 




107 


V. Wright, 


77,84 


V. Goldsberry, . 




268 


Ferine v. Striker, 


. 194 


Matter of. 




280 


Perry Herrick v. Attwood, 


. 150 


V. McKeehan, . 




33 


V. Boileau, 


45 


V. Milwaukee R. R., 




110 


V. Carr, . 




. 303 


V. Pierce, 




33 



TABLE OF AMERICAN CASES. 



Ixxi 



Pierce Tiernan, . 




243 


Porter v. Witham, 




211 


V. Trigg, . 




233 


Post V. Dart, 


. 


364 


V. West's Executors, 




363 


V. Dorr, 




121 


Pierson v. David, 




128 


V. Kimberly, 




220 


V. Ryerson, . 




194 


V. Mackall, 263, 272 


291 


315 


V. Stcinmeyer, 




239 


Postlewait 1-. Howes, . 




258 


Piggott V. Strattoii, . 




208 


Postley V. Kain, . 


, 


232 


Pike v. Armstead, 




153 


Poston V. Eubank, 




270 


Pinchain v. CoUard, . 




128 


Potier V. Barclay, 




234 


Pinckard v. Pinckard, 




79 


Potter V. Everett, 




174 


Pinckney v. Pinckney, 


96 


263 


V. Moses, . 




239 


Pinkstoa v. Taliaferro, 




269 


V. Stevens, 




110 


Pinney v. Fellows, 


28, 33 


». Tuttle, . 


. 


88 


Pinnock v. Clough, 


33 


392 


V. Waller, 




15 


Piatard v. Martin, 




174 


Potts V. Blackwell, . 




243 


Pirtle I'. Penn, . 




240 


Ex parte, . 


, 


286 


Pitcher v Barrows, . 




153 


V. Whitehead, . 




77 


Pitney v. Leonard, 




151 


Powell V. Batson, 




399 


Pitts v. Cable, . 




111 


Powell V. Central Plank Co., 




77 


V. Hooper, . 




308 


V. Firemans' Ins. Co., 




169 


Pittsburgh R. R. v. Schaefifer, 




268 


«;. Manufacturing Co. 


33 


233 


Place I'. Sweetzer, 




242 


t'. Xorth, 




246 


Piatt I'. McClure, 




111 


V. Thomas, 


. 


77 


Pleasants v. Glasscock, 


221 


309 


V. Williams, . 


. 


118 


V. Ross, 


192, 


376 


Power t'. Reeder, 




222 


Pledge V. Buss, . 




106 


Powers V. Bergen, 




285 


Plimpton I'. Fuller, . 




261 


V. Butler, 


, 


198 


Plowdeu V. Hyde, 




173 


V. Hale, . 




79 


Plume V, Bone, . 




153 


t7. Heery, 




210 


Poillon V. Martin, 




184 


Powers' Appeal, 




186 


Poindexter v. Davis, . 




3 


Powys I". Blagrave, 


, 


208 


V. Henderson, . 




208 


Pragoff V. Heslep, 


, 


268 


v. Jeffries, 




47 


Prater v. Miller, . . ■ . 


, 


77 


i>. McCannon, . 




111 


Pratt V. Norsham, 


, 


303 


Pointup V. Mitchell, . 




222 


V. Philbrook, . 


. 


177 


Polhemus v. Trainer, . 




110 


V. Taliaferro, 33, 136, 


137, 


138, 


Polk V. Gallant, 


270 


317 






139 


V. Reynolds, 




112 


V. Thornton, 


, 


51 


Pollard V Collier, 




319 


V. Wright, 


. 


282 


V. Pollard, . 




94 


Prentice i'. Achorn, . 


. 


84 


Pomeroy v. Pomeroy, 




309 


r. Buxton, . 


. 


221 


V. Sigerson, 




239 


Prescott V. Hubbell, 




346 


Pooley ». Budd, . 




91 


Preston v. Dunn, 




281 


Poor V. Carleton, 


196 


356 


V. Hennig, 


, 


268 


Pope r. Andrews, 




364 


V. Whitcomb, 




168 


V. Elliot, . 




43 


Prevost V. Gratz, 


6*1 


399 


V. Henry, . 




153 


Prewett v. Coopwood, 




183 


V. Jackson, 




285 


Prewitt V. Perry, 




198 


V. Melone, . 




315 


Price V. Berrington, . 176 


182 


303 


Porcher v. Reid, 




46 


». Clevenger, . 


196, 


356 


Port Clinton R. R. Co. v. Cleve- 




V. Griffin, 


, 


88 


land and Toledo R. R. Co. 


• 


81 


V. Griffith, 




77 


Porter v. Clements, . 




315 


». McDonald, . 


151 


153 


V. Cole, . 




153 


V. Meth. Church, 




67 


V Dubuque, 




128 


V. Nesbit, . 




250 


r. Doby, . 




40 


r. Newman, 




151 


V. Patterson, i 




228 


V. Price, . 


183 


, 233 


V. Spencer, 


222 


360 


V. Salisbury, 




77 


V. Turner, 


99 


101 


I'. Tyson, . 




389 


V. Williams, 


. 


355 


Pride v. Boyce, . 


. 


270 



Ixxii 



TABLE OF AMERICAN CASES. 



Prideaux v. Lonsdale, 






183 


Primmer v. Patten, . 






n 


Prince v. Logan, 






286 


Prince Albert ». Strange, 






214 


Printup V. Mitchell, . 






86 


Prioleau v. The United States, 2, 


314 


Pritchard v. Hicks, . 


258, 


316 


V. Wallace,. 




33 


Probasco v. Johnson, 






123 


Proby V. Landor, 






31 


Pry or v. Wood, . 




, 


144 


Pugh V. Bell. 




. 


33 


V. Currie, . 






246 


V. Good, . 






86 


V. Pugh, . 




. 


33 


Pulsford I'. Richards, . 






177 


Purcell V. Maddox, 




. 


319 


V Miner, 






86 


Purdy V. Doyle, . 




252 


257 


V. Purdy, . 




. 


33 


Purviance v. McClintee, 




. 


239 


Pusey V. Pusey, . 






77 


V. Wright, . 2C 


7, 


363, 


364 



Putnam Free School v. Fisher, . 37 

V. Sweet, . . . 320 

Pyrke v. Waddingham, , , 84 

Quackenbush v. Van Riper, 196, 356 
Quinn v. Brittain, . . .118 
Quirk V. Thomas, . . .168 



Rabbett v. Squire 
Racouillat v. Rene, . 

«. Sanswain, 
RadclifFv. Rowley, . 
Radcliffe, Ex'rs. of, v. Wightman 

V. Rusbworth, 
Ragan v. Echolls, 
Ragland v. Justices, . 
Ragsdale v. Holmes, . 
Raines v. Jones, 
Rainey v. Yarborough, 
Rajah of Coorg v. East India Co. 
Ralston v. Hughes, 

V. Telfair, 
Rambo v. Rambo, 
Ramey v. Green, 
Ramsay's Appeal, 
Ramsey v. Lewis, 

V. Liston, 
Randall v. Phillips, . 

V. Silverthorn, 
Randolph v. Kinney, . 
V. Randolph, 
Randolph's Appeal, . 
Rankin v. Harper, 

V. Lh,y, . 

V. Maxwell, . 
Rathbone i;. Clark, . 
Ravenscroft v. Jones, 



315, 31 



20 



343 
153 
123 
303 
227 
239 
364 
110 
250 
21 
269 



114 

32 

336 

413 

272 

269 

86 

111 

153 

1, 221 

227 

402 

33 

86 

90 

268, 270 

. 105 



Rawling v. Stewart, . 

Ray V. Bogart, . 

Ray & Thornton v. Bank of Ken 

tucky, .... 
Raymond v. Crane, . 
Rayner v. Pearsoll, . 
Read v. Long, . 

V. Robinson, 

V. Simmons, 
Reade v Lacy, . 

V. Woodrnffe, . 
Reading v. Blackwell, 
Rearich v. Swinehart, 
Reaves v. Garrett, 
Receiver of the City Bank of Buf 

falo, In re, . 
Receivers v. Patterson Gas Ligh 

Co., .... 
Redd V. Wood, . 
Redmon v. Green, 
Redmayne v. Forster, 
Redmond v. Dickerson, 
Reed v. Bachelder, 

V. Beazley, 

V. Cline, . 

V. Kemp, . 

V. Morrison, 

V. Murphy, 

V. Sliepardson, . 

V. Sidener, 
Rees V. Berrington, . 

V. Waters, 
Reese v. Wyman, 
Reeves v. Baker, 
V. Cooper, 
Reg. V. Smith, . 
Reid V. Fitch, . 

V. Gilford, . 

V. Lamar, . 

V. Langlois, 

V. Reid, 
Reigart v. White, 
Reilly v. Cavanaugh, 
Reitenbaugh v. Ludwick 
Relf V. Eberly, . 
Rembert v. Brown, 
Remick i'. Butterfield, 
Remington v. Irwin, . 
Remsen v. Remsen, . 
Renton v. Chaplain, . 
Renew v. Butler, 
Renwick v. Renwick, 
Repp V. Repp, . 
Resor v. Resor, . 
Respass v. Breckenridge, 
Rexford v. Widger, . 
Reybold v. Dodd, 
Reynell v. Sprye, 
Reynolds v. Godlee, . 
V. Reynolds, 



118 

277 

189 
240 
227 

79 

37 
123 
216 

10 
136 
168 

92 

259 



355 

335 

227 

125 

335 

268 

45 

376 

402 

233 

239 

243 

179 

106, 268 

. 47 

168, 177 

29, 31, 306 

. 198 

. 283 

. 33 

. 211 

. 46 

6 

28, 352 

. 268 

. 335 

. Ill 

. 175 

196, 228, 356 

61 

87, 88 

. 370, 383 

. 242, 263 

. 61 

23 

. 128 

33 

. 233 

. 175 

.221 

6, 14, 175, 177 

15 

. 231 



TABLE OF AMERICAN CASES. 



Ixxiii 



Rhea i-. Forsyth, 


. 211 


Robert 


s V. Rose, 




128 


V. ^Yhite, . 


. 268 




V. Tottan, 




227 


Rbines v. Baird, 


. 162 




V. Welch, 




115 


Rhodes v. Bate, 


. 183 


Robertson v. Bingley, 8 


335 


344 


V. Cousins, 


, 360 




V. Maxcey, 




269 


t;. Crockett, . 


. 269 




V. Shewell, 




15 


Rice V. Bernard, 


243, 246 




V. Stephens, 


96 


310 


V. Bixler, . 


. 136 




V. Sublett, 




31 


V. Burnett, 


28 


Robeson v. Hornbaker, 




86 


V. Downing, 


. 270 




V. Pittenger, 




211 


V. Rawiings, 


. 84 


Robinson v. Briggs, . 




184 


I'. Rice, 


. 159, 160 




V Crowder, 




241 


V. Tonnele, 


. 287 




V. Fife, 




115 


Rich V. Catterson, 


. 168 




V. Geldard, 




277 


Richards v. Att.-Gen. of Jar 


naica, 144 




V. Governors, 136, 


138 


263 


Ex parte, 


. 292 




V. Kettletas, 




77 


». Pierce, 


. 309 




V. Lamond, 




6 


V. Salter, 


. 203, 389 




V. Lewis, . 




397 


Richards' Appeal, 


. 211 




V. Loomis, . 




109 


Richardson v. Baker, 


. 129 




V. Mclvor, . 


263 


275 


V. Eyton, 


. 189 




V. Pett, 




61 


r. Hunt, . 


. 320 




V. Robinson, 


57 


174 


V. Inglesby, 


. 29 




V. Sampson, 




20 


V. Jones, 


. 61 




V. Wheelwright, 




45 


V. McKinson, 


. 302 




V. Williams, 




110 


V. Merrifield, 


. 288 




V. Willoughby, . 




111 


V. Wyatt, 


233, 246 




V. Woodgate, 




10 


Richmond v. Aiken, . 


. 115 


Robison V. Codman, . 




233 


t'. Foote, . 


. 86 


Robson V. Whittingham, . 




211 


V. Gray, 


84 


Rochdale Canal Co. v. King, 




211 


Ricketts v. Montgomery, 


. 61 


Rocbford v. Hackman, 


42, 


282 


Rider v. Riley, . 


8, 345 


Rockafellow v. Baker, 




177 


Ridgely v. Bond, 


, 406 


Rockw 


ell V. Folsom, . 




23 


Ridgley c. Warfield, . 


. 340 




V. Hobby, . 




123 


Ridgway v. Bank of Tenn 


essee, 198 




V. Lawrence, 


77, 91 


V. Toram, . 3' 


n, 417, 418 


Rodgers v. Jones, 




121 


Ridgway's Appeal, . 


. 246 




V. Norwill, . 




217 


Ridley v. McXairy, . 


, 86 




V. Rodgers, . 196, 


208, 


356 


Ridout V. Dowding, . 


. 31 


Rodiguez v. Heffernan, 




243 


Riker v. Darke, . 


. 230 


Rodman v. Zelley, 


79, 84 


Riley v. McCord, 


. 121 


Roebuck v. Harkins, . 




197 


Rinehart v. Harrison, 


. 136 


Rogan 


V. Walker, 


33, 


111 


Ring V. Ashworth, 


. 168 


Rogers 


V. Challis, 




78 


Ringgold V. Bryan, . 


. 363 




V. Cincinnati, 




198 


I'. Ringgold, 


55, 58, 61 




t>. French, 




104 


Ringo V. Warder, 


. 313 




V. Hill, . 




285 


Ripple V. Ripple, 


. 151 




V. Murray, 




33 


Rippy V. Grant, 


. 183 




V. Rogers, . 45, 


261, 


263 


Rittson V. Stordy, 


42, 51 




V. Saunders . 




77 


Roane v. Pickett, 


. 319 




V. Solomons, . 




356 


Robards v. Wortham, 


263. 275 




V. Waterhouse, 




84 


Robb V. Mudge, 


. 243 


Roloson V. Carson, . 


192, 


193 


V. Stevens, 


. 243 


Roosevelt v. Draper, . 




211 


Robbins v. Davis, 


14, 15 




V. Ellithorp, 




12 


Roberts v. Anderson. 


196, 356 


Rorer v. O'Brien, 




48 


V. Croft, 


. 124 


Rorke 


V. Russell, 




356 


V. Denny, 


82, 87, 88 


Rose V 


Hart, 




222 


V. Ebenhart, 


241, 246 


V. 


Jessup, . 




141 


V. Jackson, . 


. 285 


V. 


Rose, 




309 


Matter of, . 


. 293 


V. 


Watson, 


36, 


128 



Ixxiv 



TABLE OF AMERICAN CASES. 



Roser v. Randolph, 






211 


Rutherford v. Jones, • 


230 


Rosevelt v. Fulton 




. 177 


V. RufiP, . 


183 


Roshell V. Maxwell, 




. 198 


Rutland v. Paige, . , 


403 


Ross V. Adams, . 




, 389 


Rutledge v. Greenwood, . 


268 


V. Butler, . 




. 211 


V. Smith, . 


28 


V. Carter, . 




. 364 


Ryan v. Dox, 


33 


V. Clore, . 




. 270 


V. Shawneytown, 


310 


V. Drake, . 




. 136 


Ryno V. Darby, . 


84 


V. Gibbs, . 




6 






V. Norvell, 




111, 115 


Sabin v. Gilman, 


282 


V. Prentiss, 




. 417 


Sahler v. Signer, 


118 


V. Ross, 




. 351 


Sainsbury v. Jones, . 


91 


V. Union Pacific 


R. R 


. 81 


Salisbury, Matter of, . . 296, 385 


V. Whitson, 




. 128 


Salmon «;. Claggett, . 8,12,208,269 


Rossiter v. Cossit, 




. 233 


303, 363 


Rough V. Marshall, 




. 392 


V. Cutis, . . ei, 134 


Row V. Dobson, 




. 54 


Salomons v. Laing, . 


319 


Rowan v. Sharpe's Rifle Company, 


Saltonstall v. Sanders, 


67 


110, 111 


Saltus V. Tobias, 


340 


Rowe V. Granite Bridge Co., . 211 


Sainsbury v. Denton, 


30 


V. Tonkin, 


335 


Sammons v. Rose, 


138 


Rowland i'. Martindale 




221 


Sample v. Barnes, 


198 


V. Morgan, . 




42 


Sampson v. Sampson, 


101 


Rowlands v. Evans, 






243 


Samuel v. Berger, 


. 217 


Rowley v. Houghton, 






217 


Sanches v. Carriaga, . 


. 197 


V. Row\ey, 






185 


Sanders v. Rodway, . 


. 45 


Rowton V. Rowton, 






233 


V. McAlee, . 


128 


Roy V. Wallink, 






77 


V. Watson, . 


269 


Royal V. McKenzie, 






363 


Appeal, 


94 


Royer's Appeal, 






285 


Sandford v. Jackson, 


94 


Royston v. Royston, 






231 


V. McLean, . 


269 


Rozier v. Griffith, 






232 


Sarles v. Sarles, 


208 


Rucker v. Abel, 




3 


3, 101 


Saunders v. Albritton, 


197 


V. Howard, 






393 


V. Edwards, 


40 


V. Robinson 






268 


r. Frost, . .11 


8, 389 


V. Wynne, 






175 


V. Wilson, . 


118 


Rudisell v. Watson, 






45 


Savage v. Benham, . 


309 


Rugge V. Ellis, . 






90 


Savannah Bank v. Raskins, 


168 


Rumbly v. Stainton, 






346 


Sawyer i;. Hovey, 


171 


Rumbold v. Forteath, 




12 


V. Mills, 


303 


Rumph V. Abercrombie, 




183 


Saxon V. Barksdale, . . 2[j 


1, 335 


Runney Dey, Matter of. 




291 


Saylors' Appeal, 


347 


Runnell v. Read, 




168 


Sayre v. Sayre, . 


317 


Runnells v. Jackson, 




33 


V. Townshends, 


33 


Runyun v. Mersereau, 




114 


Scales V. Collins, 


276 


Rush V. Madeira, 




416 


Scarlett v. Hunter, . 


88 


Russ V. Hawes, 




30 


3, 304 


Scarsdale v. Curzon, . 


42 


Russell V. Austin, 






233 


Schaefifner v. Grutzmacher, 


33 


17. Chuxch, 






188 


Schalk V. Schmidt, . 


. 355 


». Clark, 






323 


Scheetz's Appeal, . . 19 


9, 317 


V. Failer, 






267 


Schemerhorn v. Barhydt, . 


274 


V. Howard, 






272 


Schenck v. EUingwood, 


99 


V. Jackson, 






6,7 


Schenck's Adm'r. v. Cuttrell, 


192 


V. Lanier, 






335 


Schmidt v. Livingston, 


85 


V. Laice, 






121 


Schmitheimer v. Eisernan, 


150 


V. Russell, 






123 


Schnitzel's Appeal, . 


269 


V. Southard, 






. Ill 


Schofield V. Redfern, . 


57 


Rust V. Ware, . 






. 198 


School V. Kirwin, 


60 


Rutherford v. Branch Bank, 


269 


Dist. No. 3 V. McLoon, 8 


6, 346 


V. Green, 




. 


. 136 


Com. V. Putnam, 


196 



TABLE OF AMERICAN CASES. 



Ixxv 



SchoonerWilliamThomast;. Ellis, 268 


Shatt V. Carloss, 


288 


Schotsmams v. Lanchash 


ire & 


Shaw V. Bunny, 


61 


Yorkshire R. R. Co., 


. 127 


V. Chester, 


205 


Schroder v. Schroder, 


. 94 


v.. Coble, . . . . 


286 


Schryver v. Teller, 


. 270 


V. Coster, 


206 


Schuyler v. Hoyle, 


. 313 


V. Thackray, . 


84 


Schwarz v. Wendell, . 


. 337 


Shays v. Norton, 


111 


Schwartz v. Stein, 


. 128 


Sheaffer's Appeal, 


i2, 33 


Sckenck v. Sckenck's Ex'r 


3., . 57 


Sheckell v. Hopkins, . 


111 


Scott V. Bilgerry, 


91 


Shed V. Garfield, 


335 


V. Britton, 


. Ill 


Sheen v. French, 


252 


V. Clarkson, 


. 363 


Sheffield Water Works v. Yeo- 




V. Freeland, 


61, 184 


raans, .... 


199 


V. Gallagher, 


. 153 


Sheidle v. Meishlee, . 


173 


V. Gamble, 


. 177 


Sheldon v. Bird, 


113 


V. Hastings, 


. 161 


V. Rockwell, 


199 


V. Miller, . 


4 


V. Sheldon, . 


33 


Scribner v. Allen, 


. 303 


V. Smith, 


241 


Scrimeger v. Buckhannon, 


. 302 


Shepard v. Shepard, . 


303 


Scudder v. Trenton Del. F 


alls, . 210 


Shepherd v. Adams, . 


270 


V. Vanarsdale, 


. 136 


V. Bevin, . 


79 


Seabrook v. Rose, 


. 268 


V. McEvers, . 31, 


37, 38 


Sears v. Hyer, . 


. 231 


V. Shepherd, 


78 


V. Dixon, . 


. Ill 


Sheppai-d v. Starke, . 


309 


V. La Force, 


. 269 


Shermer v. Beale, 


192 


V. Shafer, 


. 184 


Sherry v. Sansberry, . 


285 


V. Smith, . 


. 128 


Sherwood v. Andrews, 


217 


Sebring v. Mersereau, 


. 230 


V. Sutton, 


228 


Sechel v. Mosenthal, . 


. 78 


Shields v. Arndt, 


211 


Second Church v. Disbro^v 


, . 31 


V. Barrow, . . 34 


3 402 


Second Cong. Soc, &c. v. 


First 


V. Commonwealth, 


168 


Cong. Soc, &c.. 


. 364 


V. Thomas, . 


309 


Sedgwick v. Cleveland, 


. 409 


Shine v. Wilcox, 


298 


Seevers v. Delashmutt, 


. 153 


Shinnie v. Coil, 


. 192 


Seguln t'. Maverick, . 


. 417 


Shipley v. Ritter, 


210 


Seighortner v. Weissenbor 


n, . 354 


Shipp V. Jameson, 


221 


Selby V. Stanley, 


. 128 


V. Swann, 


168 


Sellers i\ Stalcup, 


. Ill 


Shirley v. Shirley, 


44 


Sellings v. Bumbgardner, 


. 316 


Shirras v. Craig, . . 11 


0, 162 


Sellman v. Bo wen. 


. 235 


Shitz V. Diffenback, . 


123 


Semmes v. Mayor of Colu 


mbus, 356 


Shobe V. Carr, . 


103 


S. E. Railway v. Knoll, 


. 87 


Shoemaker u. Smith, 


33 


Sergeant v. Ingersoll, i: 


)7, 159, 162 


V. Walker, . 5 


1, 233 


Seton V. Slade, . 


90 


Short V. Mercier, 


2,6 


Severance v. Hilton, . 


. 192 


V. Price, . 


78 


Sewell t>. Baxter, 


33 


V. Skipwith, 


. 221 


Sexton V Wheaton, . 1^ 


15, 146, 147 


Shotwell V. Mott, . ; 


65 


Seymour i'. Darrow, . 


. 110 


V. Murray, . 


, 168 


V. Delancy, 


. 77, n, 84 


V. Smith, . 


21 


V Hazard, . 


. 360 


Shotwell's Executor v. Mott, 


65 


V. Long Dock Co 


., . 220 


Shoup V. Cook, . 


. 107 


Shaeffer v. Chambers, 


. 118 


Shovelton v. Shovelton, . 


31 


V. Slade, 


. 191 


Shreve v. Black, 


210 


Shafer v. Davis, 


. 168 


V. Brereton, . 


l67 


Shaftesbury v. Arrowsmitl 


1, . 12 


Shrewsbury &c., R. R. v. London 


356 


Shannon v. Marselis, 


. 270 


Shricker v. Field, 


198 


Sharkey v. Sharkey, 


. Ill 


Shroyer v. Richmond, 


290 


Sharp t'. Mayor, 


. 177 


Shubrick v. Guerard, 


208 


V. Morrow, 


. 364 


Shulters v. Johnson, . 


263 


V. Sharp, 


. 334 


Shults V. Moore, 


153 



Ixxvi 



TABLE OF AMERICAN CASES. 



Shunk's Appeal, 




257, 272 


Slowey V. McMurray, 




Ill, 


112 


Sidle V. Walters, 




33, 34 


Small V. Boudinot, . 




303 


Sidmouth v. Sidmouth, 




33 


V. Owings, 






363 


Siemon v. Schurck, . 




, , 33 


Smallcomb's Case, 






175 


Sigler V. The Ba«k, . 




. 243 


Smallwood v. Lewin, 






153 


Sigourney v. Munn, . 


151 


244, 246 


Smedbury v. Mark, 






360 


Silcox V. Nelson, 




. . 310 


Smith V. Babcock, 




177, 


346 


Silk V. Prime, . 


243 


254, 257 


V. Bailey, 






121 


Simmons v. North, 




. 168 


V. Bangs, 






211 


V. Tongue, . 




. 243 


V. Bank, . 






210 


V. Whitaker, 




. 259 


V. Bartholemev 


v', 




320 


Simms v. Smith, 




. 399 


V. Bowen, 






30 


Simpson v. Amnions, . 




. 110 


V. Brittain, 






230 


V. Downs, . 




. 397 


V. Burnham, 






305 


V. Feltz, 




, 239 


V. Clark, . 




303, 


363 


V. Fogo, 




. 335 


V. Cummings, 




211, 


356 


V. Hotel Co., 




. 321 


V. Elliott, 






183 


V. Montgomery 




. 129 


I'. Etches, 






313 


V. Mundee, . 




. 128 


Ex parte, 






282 


V. Simpson, . 




. 45 


V. Fisher, 






344 


V. Watts, 




. 417 


V. Fly, . 






91 


Simonton v. Gray, 




. 233 


V. Hurst, . 






31 


Sims V. Aughtery, 




20, 310 


V. Jackson, 




233, 


246 


Sinclair v. Jackson, . 




57, 58 


V. Jewett, 






109 


Singer v. Troutman, . 




. 268 


V. Jones, . 






246 


Singleton v. Gayle, . 




. 20 


V. Kane, . 






48 


Sinnickson v. Br-uere, 




. 386 


V. Kay, 


U 


S3, 303 


363 


Siter V. Clanachan, . 




. 136 


V. Kincaid, 






363 


& Co. V. McClanachan, 


162, 163 


V. Kniskern, 






94 


Sites V. Keller, . 


, 


86 


V. Kornegay, 






314 


Sitler V. Walker, 


. 


. 242 


V. Lasher, 




10, 


308 


Skidmore v. Romaine, 


. 


. 263 


V. Levaux, 






221 


Skilbeck v. Hilton, . 




. 191 


V. Lockwood, 






211 


Skinner v. Baily, 




. 304 


V. Lowe, . 






243 


V. Drayton, . 


107 


240, 241 


V. McConnell, 






199 


V. Deming, . 


, 


. 198 


V. McCrar}', 






136 


V. Judson, . 


. 


3,4,5 


V. McDougal, 






168 


V. Matter of, 




. 231 


V. McVeigh, 






86 


V. Miller, 




. 113 


V. Manning Ex' 


rs., 




113 


V. Smith, 


, 


. 115 


V. Marks, 






224 


V. White, . 


, 


107, 174 


V. Matthews, 




28, 29 


Shipwith Ex'r. v. Cunningham, 28 


V. Moore, 




103 


114 


Skrine v. Simmons, . 




176, 303 


V. Mules, . 




, 


243 


Slack V. W^alcott, 




. 406 


V. Pilkington, 






118 


Slade ti. Street, , 




. 248 


V. Pincombe, 






313 


Slason V. Wright, 


. 


. 403 


V. Pettingill, 






210 


Slater v. Maxwell, 


. 


. 347 


V. Poyas, 






208 


Slaughter v. Harris, . 


. 


. 77 


V. Ramsay, 




33 


246 


V. Trndle, . 




90 


V. Richards, 




, 


177 


Sledds V. Carey, 




. 96 


V. Robertson, 






177 


Slee V. Bloom, . 


. 


. 227 


V. Smith, 33, 56, 86 


, lOl", 


110, 


V. Manhattan Co., 


Ill, 


115, 389 


114, 115, 117, 19- 


i, 230, 


231, 


Slemmer's Appeal, . 




. 309 


30 


2, 309 


320 


Sloan V. Little, . 




. 10 


V. Tarlton, 




246 


V. Moore, 


. 


. 243 


V. Trenton Falls Co. 


• 


309 


V. Whiteman, , 


, 


. 416 


V. Turrenture, . 




168 


Slocam V. Catlin, 


. 


. Ill 


V. Underdunck, 




86 


V. Marshall, . 


2S 


, 33, 184 


V. United States, 




268 


V. Slocum, . 




. 138 


V. Walker, 




168 


SlossoD V. Beadle, 


. 


. 107 


V. Wainwright, 






222 



TABLE OF AMERICAN CASES, 



Ixxvii 



Smith I'. Warr, . 

t'. Woodruff, 
Smithurst v. Edmonds, 
Snead r. McCoull, 
Sneed v. Atherton, 



136 

217 
110 
346 
233 



Snelgrove v. Snelgrove, 93, 94, 96, 162 
Snelling t'. Boyd. . . .317 
Snelson v. Franklin, . . . 179 
Snodgrass's Appeal, . . . 243 
Snowhill V. Snowhill, 33, 144, 285 
Snyder v. Griswold, . . .Ill 
Soames r. Edge, ... 77 

Society for Propagation of Gospel 

V. Hartland, . . . 312, 320 
Sohier v. Williams, . . 84, 316 
Soles t'. Hickman, ... 77 
Solms r. McCulloch, . . , 153 
Soltau f. De Held, . . .211 
Somerset (Duke of) v. Cookson, 77 
Sopwith V. Maughan, . . 96 

Sorg V. German, <fec., . . 364 

Southard v. Gushing, . . 364 

V. Morris Canal, . 210 

V. Russell, . . . 417 
Southeast R. R. Co. v. Brogden, 221 
Southeastern R. R. Co. v. Sub- 
Telegraph Co., . . .309 
Southwestern R. R. i-. Thoma- 

son, 252 

Southern Life Ins., &c., Co. v. 

Cole, . . . . 82, 88 

Southgate v. Montgomery, . 198 

South worth i'. Smith, . . 233 

Souza V. Belcher, . . . 334 
Souzer v. De Meyer, . . . 339 
Spalding v. Conzelman, . . 86 
Sparhawk v. Buell, . . .287 
Spaulding v. Alexander, . . 88 
Speakman v. Forepaugh, . . 84 
Speed's Ex'r. v. Nelson's Ex'r., . 254' 
Speer v. Erans, . . . 153 

V. McCart, . . .102 
V. Skinner, . . .110 
r. Speer, .... 230 
Speights V. Peters, . . 243, 352 
Speiglemyer v. Crawford, . .177 
Spence w. Duren, .178, 303 

V. Whittaker, . . 177 

Spencer v Spencer, ... 58 
Sperrys Estate, . . . 243 

Spickernell r. Hotham, . . 258 
Spiller V. Spiller, . • . .121 
Spirey i'. Jenkins, . . . 322 
Spofford V. .Manning, . . 333, 335 
V. Weston, . . .153 
Spooner I'. McConnell. . 208,211 
Spotswood I'. Pendleton, . . 285 
Spottswood i\ Dandredge, . . 268 
Spread r. Morgan, . . 96, 97 

Spring V. Pride, . . .184 



Spring V. So. Car. Ins. Co., . 389 
Springle v. Shields, ... 91 
Sproule V. Samuel, . . . 364 
St. Felix V. Rankin, . . . 233 
St. Helen Smelting Co. v. Tipping, 211 
St. John V. Benedict, . 77, 84 

St. Mary's Church v. Stockton, , 84 
Stables, Re, ... . 287 
Stackhouse v. Countess of Jersey, 162 



Stacy V. Pearson & Bobbits, 




20 


Stafford v. Bartholomew, . 




77 


V. Brown, 




303 


r. Bryan, 




21 


V. Mott, 




389 


V. Van Rensaelaer, 




128 


Stagg V. Jackson, 


136 


254 


Staines v. Shore, 


, 


177 


Stainton v. Carron Co., 


, 


301 


V. Cbadwick, 




9, 17 


Stallings v. Stallings, 




230 


Stamps t'. Birmingham, 




344 


Stanard v. Rogers, 




198 


Stanley p. Brennen, . 


. 


33 


V. Stocks, 


. 


270 


Stapilton v. Stapilton, 


. 


188 


Stapleton v. Langstaff, 


. 


285 


Stark V. Wood, . 


. 


356 


State V. McGowen, 


. 


65 


of Mississippi v. Johnson, 




President, . 




195 


V. Northern Central Rail- 




way Co., 




196 


V. Paup, . 


, 


168 


Bank i;. Edwards, 


. 


363 


V. March, 




61 


V. Titus, . 




270 


». Young, 




335 


Stearns v. Hubbard, . 


. 


86 


V. Page, 


337 


339 


Stedwell v. Anderson, 


. 


168 


Steedman v. Weeks, . 


230 


231 


Steel V. Steel, . 


, 


111 


Steele v. White, 


, 


188 


Steere v. Steere, 


28, 33 


Steinberger's Trus. v. Potter, 


, 


42 


Steiger v. Hillen, 




235 


Stephens v. Cady, 




216 


V. Stephens, 


. 


94 


V. Terrell, . 


. 


346 


Stephenson v. Haines, 


. 


111 


p.Traveners, 258 


260, 


268, 
270 


Sterling v. Brightbill,' 


, 


272 


Sterne v. Beck, . 


. 


107 


Sterry v. Arden, 


101 


102 


Stevens v. Beekman, 




210 


V. Cooper, 




270 


V. Dewey, 


. 


417 


». Gregg, 




261 


V. Post, 


. 


363 



Ixxviii 



TABLE OF AMERICAN CASES. 



Stevens v. Rutland & Bur 


ington 




Stuart V. Bute, . 




282 


R. R., 


. 


321 


V. Carson, 




261 


V. Smith, 


51 


233 


V. Coalter, 




230 


V. Wheeler, . 




86 


V. Kissam, 


263 


313 


V. Yeatman, . 




243 


Stuart's Heirs v. Coalter, 




310 


Stewart v. Brown, 




33 


Stubbs V. Burwell, 




23 


V. Crosby, 


. " . 


110 


Slump V. Findlay, 


93, 97 


V. Drasha, 




3 


V. Gaby, 




61 


V. Heard, 




233 


V. Rogers, 




270 


V. Ives, 




128 


Sturges V. Cary, 




270 


V. Ludwick, 




191 


V. Longworth, 3 


13, 324 


418 


V. McMinn, . 




61 


Sturgis V. Chanipneys, 




47 


V. Stone, 




20 


Sturtevant v. Goode, 


221 


224 


V. Turner, 




379 


Stuyvesant v. Hale, . 




37 


V. Winters, . 




207 


V. Hall, . 




153 


Stiles V. Brock, . 




172 


V. Hone, . 




270 


Stillman v. Stillman, 




270 


V. Peckham, 




6 


Stimson v. Lewis, 




320 


Sugden v. Crossland, 




57 


Stires v. Stires, . 




274 


Sullivan v. Blackwell, 




184 


Stocker v. Brockelbank, 




239 


V. Ferguson, 




128 


V. Wedderburne, 




207 


V. Tuck, 




77 


Stocks V. Dobson, 




53 


V. Winthrop, 




103 


Stockton V. Ford, 




184 


Summers v. Roos, 




110 


Stoddart v. Tuck, 




86 


Sumner v. Hampston, 


233 


246 


Stoever v. StCEver, 




111 


V. Marcy, 




198 


Stokes V. Knarr, 




198 


V. Rhodes, 




153 


V. LandgrafF, . 




217 


Surgett V. Byers, 




174 


Stol worthy v. Bancroft, 




184 


Sutton, &c., Co. V. Hitcher 


s, . 


347 


Stone V. Anderson, . 




309 


V. Wilders, 




61 


V. Godfrey, 




189 


Suydam v. Beals, 




198 


V. Hale, 




168 


V. Northwest Ins. 


Co., . 


303 


V. Moore, 




333 


Swabey v. Sutton, 




9 


Stoner v. Zimmerman, 




136 


Swaisland v. Dearsley, 




85 


Stoney v. Shaltz, 




270 


Swan V. Dent, . 


317, 


346 


Stoolfoos V. Jenkins, . 




176 


Swartzer v. Gillet, 




175 


Storm V. Maun, . 




208 


Swayne v. Lyon, 




84 


Storms V. Storms, 




269 


Swayze v. Swayze, . 


302 


310 


Story V. Conger, 




168 


Sweet V. Benning, 




216 


V. Livingston, . 


312 


383 


V. Mitchell, 




111 


V. Moon, . 




243' 


V. Parker, 


20 


111 


V. Norwich and Wor 


tester. 


192 


V. Sweet, 




283 


Story's Ex'rs. v. Holcombe 




215 


Sweeting v. Sweeting, 




50 


Stouffer V. Machen, . 




363 


Sweezy v. Thayer, 




285 


Stoutenberg v. Thompkins 


V 


-, 82 


Swift V. Dean, . 




21 


Stoutenburgh v. Peck, 


196, 


356 


V. Eckford, 




310 


Stovall V. N. Bank of Miss. 


J 


336 


V. Swift, . 


283, 


356 


Stover V. Bounds, 


111, 


113 


Swinburn v. Swinburn, 




33 


V. Eycleshimer, 




54 


Swineborne v. Nelson, 




17 


Stow V. Russell,. 




88 


Synnot v. Simpson, . 




^1 


Stowe V. Thomas, 




216 


Sypher v. McHenry, . 




61 


Strange v. Bell, . 




202 








V. Watson, . 




309 


Tabb V. Archer, 




288 


Strathmore (Countess of) u. 


Bowes 


180 


Taber v. Hamlin, 




HI 


Straughan v. Wright, 




230 


Taggert t». Bolden, 




363 


Streatfield v. Streatfield, . 


92, 94 


Tainter v. Clark, 




65 


Streator v. Jones, 




111 


Talbot V. McGee, 




402 


Streeper v. Williams, 




107 


V. Pierce, 


. 243, 


246 


Strong V. Blanchard, 




118 


V. Scott, . 




354 


V. Stewart, 




111 


Talley v. Starke, 




285 


Stroughill V. Anstey, 




157 


Tallmadge v. Lovett, . 




335 



TABLE OF AMERICAN CASES, 



Ixxix 



Tallman v. Woods, 




40 


Thompson v. Bostwick, 






268 


Talmage v. Pell, 


. 


18 


V. Brown, . 


252, 


258, 


287 


Tambro v. Gamble, . 




251 


V. Diffenderfer, . 




363 


Tankcrsley v. Anderson, . 




270 


V. Dulles, . 


. 




84 


Tarbel 


V. Tarbell, . 




78 


V. Engle, . 


. 




12 


Tarleton v. Vietes, 




17 


V. Edwards, 


. 




399 


Tassell 


V. Smith, 




163 


V. Fisher, . 






228 


Tassey 


V. Church, 




240 


V. Gossitt, 






183 


Tatliam v. Lewis, 




392 


V. Goulding, 






416 


Tatum 


V. Tatum, 




269 


V. Hardman, 






231 


Tayloe 


V. Mer. Fire Ins. Co., 




83 


V. Hudson, 






107 


Taylor 


V. Benham, . 42, 


136, 


138 


V. Jackson, 


174, 


176, 


303 




V. Galloway, . 




37 


V. Lee, 


t 




177 




V. Heriot, 




270 


V. McDonald, 






317 




V. James, . 33, 78 


101 


V. Morrow, 






233 




V. Luther, 10, 111, 


339 


344 


V. Murray, 


233, 


270, 


272 




V. Manners, 




106 


V. Newlin, 






335 




V. Maris, . 




270 


V. Patton, . 






111 




V. Meads, 




46 


V. Thompson 


• 


38 


233 




V. Moore, 




364 


V. Todd, . 






84 




V. Portington, 




77 


V. Whitmore, 


. 




169 




V. Sandil'ord, . 




107 


Thompsonville v. Osgood, . 




168 




V. Savage, 




269 


Thomson v. Ebbets, . 






206 




V. Taylor, 33, 101, 


136, 


138, 


V. Palmer, . 






269 






184, 


217 


Thorn v. Coles, . 






138 




V. Titus, . 




402 


V. Halsey, 






360 




Adm'r. v. Nicolson, 




192 


Thornborough v. Baker, 




110, 


111 


Taymon v. Mitchell, . 




177 


Thornton i'. Hightower, 






320 


Tazewell v. Smith, 


136, 


137 


V. Knox's Ex'rs., . 




128 


Teaff t; 


. Hewitt, . 


375 


399 


Thorp V. Pettit, . 






82 


Teas's 


Appeal, . 




263 


Thorpe v. Jackson, 






172 


Tebbetts v. Tilden, . 




33 


Thruston v. Minke, . 






230 


Telfair 


V. Stead, 




316 


Thurman v. Shelton, . 




302, 


310 


Tenny 


V. State Bank, . 




331 


V. Burt, 






182 


Terrill 


V. Craig, . 




302 


Thynne (Lady) v. Earl of Gl 


en- 




Teviss' 


Rep. ('. Richardson's H 


eirs, 


48 


gall, . . 






104 


Thayer 


V. Lane, . 


246, 


335 


Tibbs V. Barker, 






86 




V. Mann, . 




110 


V. Morris, . 






111 


Thibaut v. Canova, . 




211 


Tice V. Annin, . 






113 


Thigpe 


n V. Price, 




268 


Tidd V. Lister, . 




49, 


263 


Thomas v. Doub, 




346 


Tiernan v. Beam, 






128 




V. EUmaker, 


239 


309 


V. Hinman, 






107 


, 


V. Grand Gulf Bank 


> 


153 


V. Roland, 81, 


84, 87, 88 


,90, 




V. Hearn, 




270 






91, 96 




V. Horn, 




196 


V. Thurman, . 




, 


128 




V. James, 




210 


Tilford V. Emerson, . 




, 


302 




V. Kelsey, 




110 


Tillett V. Charing Cross 


Bridge, 


77 




V. McCormack, 




111 


Tillinghast v. Champlin 


. 




151 




V. Phillips, . 




198 


Tillson V. Moulton, 


. 


. 


111 




V. Rawlings, 




417 


Tilman v. Searcy, 






302 




V. Roberts, . 




283 


Tilton V. Hunter, 






153 




V. Sheppard, 




183 


V. Tilton, 


85 


, 86 


168 




V. Thomas, . 


261 


281 


Timberlake v. Parish, 




94, 95 




V. Wood, 




136 


Tindall v. Childress, . 






168 


Thomason v. Smithson, 




309 


V. Harkinson, . 






177 


Thoma 


.sson V. Kennedy, 




377 


Tingluy v. Cutler, 


. 




107 


Thompkins v. Hyatt, . 




87 


Tinsley v. Lacy, . 






216 




V. Mitchell, 




128 


Titus V. Mabee, . 


. 




196 


Thomp 


son V. Adams, . 




269 


V. Neilson, 






233 




V. Berry, . 




198 


Tobey v. County of Bris 


tol, 


77, 


192 



Ixxx 



TABLE OF AMERICAN CASES. 



Tobias v. Ketchum, 




. 


94 


Trustees of Watertown v. C 


3wen, 


364 


Tod V. Baylor, . 




233, 


235 


Tucker v. Andrews, . 




180 


Todd V. Campbell, 




. 


111 




V. Barrow, 




101 


V. Gee, 




. 


91 




V. Carpenter, . 




356 


V. Moore, . 






61 




V. Cheshire, . 




308 


V. Taft, 






88 




V. Keeler, 




114 


Tolson V. Tolson, 


* 




364 




V. Madden, 




168 


Tombs V. Rock, . 




263 


276 




V. 0x1 ey. 




243 


Tomlinson v. Claywell, 




309 




V. Tucker, 




310 


V. Lindley, 


20 


363 


Tuckley v. Thompson, 




125 


V. Ward, . 




392 


Tufnell V. Constable, . 




106 


Tompkins v. Ward, . 


. 


338 


Tulk V 


Moxhay, 




152 


Tone V. Brace, . 




194 


Tully I 


. Harloe, . 




110 


Tong V. Oliver, . 


196 


356 


Tully's 


Ex'rs. V. Smith, 




183 


Tongue v. Morton, 


, 


157 


Tunno 


V. Trezevant, . 




243 


TopliflF t>. Vail, . 




243 


Turley 


V. Young, 




320 


Torill V. Skinner, 


, 


111 


Turnb 


nil V. Gadsen, . 




177 


Torrey v. Bank of Orleans, 




61 


Turner 


V. Bissell, 




239 


V. Buck, . 




179 




V. Burrows, 




268 


Towle V. Mack, . 


, 


61 




V. Cameron's Co., 




114 


V. Pierce, . 




303 




V. Clay, . 




77 


Townend v. Toker, 


, 


315 




V, Crebill, 




157 


Towner v. Lane, 




244 




I'. Dickerson, . 




19 


Townley v. Sherborne, 




58 




V. Kerr, . 




111 


Townsend v. Auger, . 




321 




V. Marriott, 




84 


V. Houston, 




86 




V. Navigation Co., 




177 


V. Kendall, 


. 


282 




V. Petigrew, . 




33 


V. Smith, . 




397 




V. Turner, 


194* 


389 


Townshend v. Duncan, 


303 


304 


Turnip 


seed V. Cunningham 


; 


111 


V. Mostyn, 




274 


Turnpike, &c. v. Barnet, 




210 


Tracey v. Herrick, 




192 




Co. V. Allen, 




226 


Tracy, Matter of, 




292 


Tuttle 


V. Jackson, 




153 


Tradesmans' Bank v. Hyat, 




10 


Twyne's Case, . 




151 


Traip v. Gould, . 


20 


309 


Tyler i 


. Black, . 




177 


Trapnall v. Byrd's Adm'r., 




305 


Tyree 


V. Williams, 




84 


Trask v. Donoghue, . 




37 


Tyrell 


V. Bank, . 




184 


Travers v. Ross, . 




333 




V. Morris, 




251 


Travis v. Milne, . 




301 


Tyson 


V. Watts, 


77, 82 


V. Waters, 


400 


406 










Trayner v. Brooks, . ^. 




230 


Uhler V. Hutchinson, . 


, 


153 


Tredwell v. Brown, . 


, 


243 


Underbill v. Dennis, . 


, 


282 


Tremper v. Barton, . 33 


,101 


102 




V. Van Cortlandt 




403 


Trescott v. King, 




110 


Underwood v. Brockman, 


182 


189 


V. Smyth, 


312 


319 


Union 


3ank v. Barker, 


. 


i, 33 


Trevor v. McKay, 


. 


198 




V. Buck, . 




268 


Trotter v. Blocker, 


. 


40 




V. Geary, . 


21 


363 


V. Erwin, 




128 




V. Kerr, . 




205 


Troup V. Haight, 


, 


227 


Unitarian Soc. v. Woodbur 


y, 2 


8,33 


V. Hurlbut, 




153 


United States v. Duncan, 


270 


272 


V. Sherwood, . 




371 




V. Green, 




280 


Trowbridge v. Harlestoa, . 




272 




V. Hunter, 




209 


Trucks V. Lindsay, 


. 


111 




V. Keokuk, 




198 


Truebody v. Jacobson, 


. 


128 




V, Monroe, 




168 


Trull V. Trull, . 


, 


62 




V. Parrott, 




208 


Truly V. Wanser, 




198 




V. Price, 




173 


Trustees v. Hossle, . 


, 


194 




V. Saline Bat 


ik, : 


3 


V. Wright, . 




128 




V. Samperya 


:, 416 


417 


of Baptist Association 






V. Stone, 




18^ 


V. Smith, . 




65 




V. Vaughan, 




53 


of Huntington v. NicoU. 


199 




V. Wagner, 


2 


314 



TABLE OF AMERICAN CASES, 



Ixxxi 



United States Bank v. Lee, 




153 


Vick V. Troy, &c.. 


79 


Ins. Co V. Shriver, 


272 


Vidal V. Girard's Ex'rs., . 


65, 67 


Upham V. Brooks, 




317 


Vilas r. Jones, . . . 175,319 


Upshaw V. Upshaw, . 


92 


, 96 


Village of Sen. Falls v. Matthew 


s, 356 


Urmey's Ex'rs. v. Woodon, 


65 


, 69 


Villard v. Chovin, 


286 


Utica Ins. Co. v. Lynch, 57, 


308, 


344 


ViUines v. Norfleet, . 
Vizonneau v. Pegram, 


61 
46 


Vail V. Foster, . 




268 


Vliet V. Lowmason, . . 196, 356 


Valentine v. Farrington, . 




268 


Voorhees v. Jones, 


239 


V. Johnson, 


, 


268 


Vose V. Philbrook, 


323 


Van Alst v. Hunter, . 




248 


Voyle V. Hughes, 


53, 80 


Van Amaringe v. Ellmaker, 




240 






Vanartsdalen v. Vanartsdalen 


J • 


280 


W V. B , 


175 


Van Buren v. Olmstead, 


111, 


118 


Wack V. Sorber, 


86 


Vanbuskirk v. Ins. Co., 




53 


Wade V. Amer. Col. Soc, . 


65 


Van Cortlandt v. Beekman, 




303 


V. Green, 


269 


V. Underbill, 




192 


Wager v. Chew, 


267 


Vanderhaize v. Hugues, 




111 


Waggoner v. Speck, . 


86 


Vanderveer v. Stryker, 




335 


Wagstaflfe v. Lowerre, 


40 


Van Doren v. Robinson, . 


81, 86 


Wailes v. Cooper, 


162 


Vandoren v. Todds, . 




128 


Wainwright v. Read, 


90 


Van Duyne v. Van Duyne, 


3] 


, 92 


Wakefield Bank v. Truesdale, 


268 


Van Epps v. Van Dasen, . 


48, 


281 


Wakeman v. Gillespy. . 196, 356 


Van Hook v. Whitlock, 


337, 


340 


V. Grover, . 315, 363 


Vanhorn v. Duckworth, 




334 


Wales V. Bogue, 


33 


Van Home v. Fonda, 




61 


Walker v. Armstrong, 


171 


Van Houten v. 1st Ref. Dutch Ch. 


196 


V. Butz, 


157 


Van Hbuten's Case, . 




280 


V. Crowder, . 


287 


Van Husen v. Kanouse, 




110 


Estate, . 261, 26 


3, 275 


Van Kruen t'. Trenton Manuf 


Co 


356 


V. Gilbert, . 


153 


Vanmeter v. McFadden, 


123, 


153 


V. Gregory, . 


175 


Vann v. Hargett, 




312 


V. Hall, . 


31 


Van Orden v. Durham, 


, 


268 


V. Hallett, 


. 346 


Van Pelt v. McGraw, 




114 


V. House, 


243 


Van Reimsdyk v. Kane, 


20 


363 


V. Laflin, 


230 


Vansitttart o. Vansittart, . 


45, 


283 


V. Robbins, . 


198 


Van Valkinburgh v. Watson, 




287 


V. Selfe, 


211 


Vanwinkle v. Curtis, 


. 


211 


V. Shepardson, 


211 


Varick v. Smith, 




309 


V. Shore, 


• 55 


Varnum v. Meserve, . 




121 


V. Trott, 


243 


Vasser v. Vasser, 


78 


111 


V. Walker, 


103 


Vattier v. Hind, 




162 


Wall V. Arrington, . . 8 


5, 168 


Vauck V. Edwards, 


54 


186 


V. Cloud, . 


211 


Vaughan v. Deloatch, 




252 


V. Cockerell, 


184 


V. Vanderstegan, 


46, 


176 


V. Hill, 


303 


Vaughn v. Johnson, . 




197 


V. Thompson, . 


179 


V. Law, 


, 


211 


Wallace v. Coston, 


46 


V. Tracy, 


. 


153 


V. Duffield, . 


33 


Vaux V. Parke, . 




43 


V. Duncan, 


360 


Veile V. Hoag, . 




268 


V. McCoUogh, 


. 33 


Venabe v. Beauchamp, 


, 


319 


V. McVey, 


211 


Venable v, Coffman, . 


. 


69 


Waller v. Armstead, . 


180 


Vennum v. Davis, 


, 


194 


V. Taylor, 


310 


Verden v. Coleman, . 


•. 


375 


Wallingsford v. Wallingsford, 


45 


Verdier v. Verdier, 




275 


Wallis V. Freeman, 


. 239 


Vermilye v. Christie, 


, 


345 


V. Long, . 


. 110 


Verplanck v. Gaines, 




335 


V. Thornton, . 


. 58 


^ V. Mer. Ins. Co. of 






Wallwork v. Derby, . 


. 363 


N.Y., . . 




312 


Wallwyn v. Lee, 


. 162 


Vick V. Mayor of Vicksburg, 


. 


230 


Walraven v. Lord, 


. 28 



Ixxxii 



TABLE OF AMERICAN CASES. 



Walrond v. Walrond, 




78 


Watts V. Smith, 




3 


Walsh V. Smyth, 




397 


V. Steele, 




287 


Walsham v. Stainton, 


6 


310 


V. Waddle, 




84 


Walton V. Cody, 




121 


Waugh V. Carver, 




239 


V. Walton, 




363 


V. Mitchell, 




246 


Wambaugh v. Bimer, 




177 


Wayland v. Tucker, . ^ 




268 


Waples V. Waples, . . 




193 


Weaver v. Shyrock, . 




172 


Ward V. Cooke, 




110 


Weaver's Appeal, 




101 


V. Grey, . 




31 


Webb V. Bowman's Ex'rs., 


167 


168 


V. Hill, . 




376 


V. Direc. London & Ports- 




V. Seabry, 




324 


mouth R. R. Co. 




84 


V. Tyrrell, 




186 


V. Evans, 




94 


V. Van Bokkelen, 


196 


356 


V. Pell, . 


20 


416 


Warde v. Warde, 




6, 7 


V. Portland Manufac 


.Co., 


211 


Warden v. Eichbaum, 




290 


V. Robinson, . 




48 


Wardlaw v. Gray, 




243 


V. Wools, 




31 


Ware v. Richardson, . 




363 


Weber v. Marshall, 




77 


Warfield v. Warfield, 




231 


Webster v. Maddox, . 




153 


Waring v. Ayres, 




77 


V. Van Steenbergl 


h 


151 


V. Cram, 


246 


356 


V. Webster, . 




45 


V. Suydam, . 




8 


Weed V. Grant, . 




194 


Warley v. Warley, 


263 


275 


V. Smull, 


226 


337 


Warner v. Bates, 




31 


Weir V. Tannehill, . 




31 


V. Bennett, 




109 


Welch V. Beers, 




113 


V. Conant, 




198 


V. Knott, 




217 


V. Daniels, 


20 


177 


Re, 




286 


Warren v. Copelin, 




53 


Wellborn v. Tiller, . 




310 


V. Fenn, 




128 


Welles V. March, 




241 


V. Richmond, 




151 


Wellesly v. Wellesly, 


301 


402 


V. Sproiile, . 




364 


Wellington v. Gale, . 




114 


V. Warren, 


272 


344 


V. Maxwell, 




88 


Warwick v. Queen's CoUeg 


e, . 


15 


V. Moore, 




233 


Washburn v. Goodman, 




246 


V. Strange, 




310 


Washington R. R. v. Alexa 


ndria 




Wells V. Houston, 




363 


R. R., . 




61 


V. McCall, 




44 


V. Tait, . 




270 


V. Millet, . 




84 


University v. ( 


jlreen. 


219 


V. Morrow, 




129 


Wason V. Warering, . 




188 


V. River Raisin R. R 


Co.," 


334 


Waterlow v. Bacon, . 




194 


V. Yates, 




171 


Waterman v. Hunt, . 




243 


Welsh V. Bayard, 




86 


Waters v. Groom, 




61 


V. Buckins, 




233 


V. Howard, 


11, 88, 95 


V. Usher, 




123 


V. Lemon, 




191 


Wemple v. Stewart, . 




168 


V. Mynn, 


176, 


303 


Wendell, Matter of, . 


290 


291 


V. Riley, 




268 


V. Van Rensselaer 


) 


312 


V. Tazewell, . 




44 


V. Wadsworth, 




153 


V. Thorn, 




61 


Wentworth v. Lloyd, 




7 


V. Travis, 


'87, 91 


Wesley v. Thomas, 




168 


Watkins v-. Collins, . 




174 


West V. Bank of Rutland, 




257 


Watney v. Wells, 




243 


V. Beanes, 




175 


Watson V. Bagaley, . 




31 


V. Belches, 




268 


V. Bothwell, . 




248 


V. Flanigan, 




363 


V. Cox, 




310 


V.Hall, . 




346 


V. Godwin, . 




363 


Midland R. R. Oompt 


my V. 




V. Hunter, 




208 


Nixon, 




315 


V. Mahan, 




86 


V. Patton, 




168 


V. Wells, 


128, 


157 


V. Randall, 




312 


Watt V. Watt, . 




113 


V. Rouse, . 




196 


Watts V. Gayle, 


316, 


319 


V. Walker, 




210 


V. Girdlestone, 




57 


V. Williams, 




344 



JABLE OF AMERICAN CASES. 



Ixxxiii 



Westbrook v. Comstock, . 


281 


Whitehead v. Brown, 




168 


V. Harbeson, 


85 


Whitehorn v. Hines, . 


. 183, 


184 


Westerman v. Means, 


88 


Whitehurst v. Harker, 


. 


30 


Western Ins. Co. v. Eagle Fire 




Whitenack, Matter of. 




292 


Ins. Co. .... 


335 


Whitesides v. Cannon, 




46 


Western v. McDermott, 


152 


V. Darris, . 




48 


Reserve Bank v. Stryker, 347 


V. Greenlee, 


.' 84, 


183 


R. R. Corporation v. 




Whitewater &c. Co. v. C 


omegys. 


205 


Babcock, . 


84, 85 


Whiting V. Bank U. S., 




416 


Stage Co. V. Walker, 


241 


V. Barney, 




6 


Westervelt v. HofiF, . 


157 


V. Beebe, 




363 


West Jersey R. R. v. Thomas, 192, 196, 


V. Gould, 




33 




356 


Whitman v. Lex, 




65 


Weston V. Foster, 


230 


V. Robinson, 




354 


Wetmore v. Scovill, 


214 


Whitmore v. Turquand, 




31 


Wetzel V. Sponsler's Ex'trs., 


268 


Whitney i;. French, . 


111, 114 


241 


Weyer v. Tbornburg, 


243 


V. Mayo, 


. 312, 


320 


Wharl V. Howell, 


111 


V. Robbins, . 




344 


Wheat V. Moss, 


356 


V. Whitney, . 




310 


Wheatley v. Calhoun, 


233 


Whitridge v. Durkee, 




268 


Wheeland v. Swartz, . 


111 


V. Parkhurst, 


77, 96 


Wheeler v. Bates, 


117 


Whittick V. Kane, 




111 


V. Clinton Can. Bank, 


310 


Whitton V. Smith, 




242 


V. Smith, 


65 


V. Whitton, . 




230 


Wheelden v. Lowell, 


177 


Whitworth v. Whyddon, 




353 


Whelan v. Whelan, . 


183 


Whyte V. Arthur, 




402 


Wheling v. Eichelberger, . 


111 


Wickam v. Gattrell, . 




175 


Whilden v. Whilden, 


94 


Wickman v. Robinson, 




128 


Whillock V. Hale, 


230 


Wierich v. De Zoya, . 




197 


Whipple V. Barnes, . 


110 


Wikoff V. Davis, . 




270 


V. Dow, 


287 


Wilbanks v. Duncan, . 




379 


V. McClure, . 


183 


Wilcox V. Davis, 




303 


V. Van Rennsselaer, 


364 


V. Mills, . 




310 


Whitbread v. Smith, . 


173 


V. Wilkinson,. 




397 


White V. Banks, . . 26 


7, 269 


V. Wileox, 


. 263, 


275 


V. Booth, 


211 


Wild t). Gladstone, 




341 


V. Brown, 


118 


Wilde V. Fox, 




86 


V. Bullock, 


402 


V. Jenkins, 




227 


V. Buloid, . 17, 1 


8, 402 


Wilder v. Keeler, 


243, 247, 


252 


V. Cox, 


. 179 


Wilderman v. Baltimore, 




65 


V. Crew, 


363 


Wilhelm v. Folmer, . 




33 


t). Dingley, 


107 


V. Lee, 




117 


V. Dougherty, • 


243 


V. Wilhelm, 




231 


V. Fisk, . 


65, 69 


Wilkes V. Henry, 




342 


V. Forbes, 


. 211 


V. Rogers, 




287 


V. Hall, . 


310 


Wilkin V. Wilkin, 


. 230, 


309 


V. Hampton, 


21 


Wilkins v. French, 




114 


V. Morrison, 


347 


V. Sears, 




113 


V. Parker, 


285 


V. Taylor, 




136 


V. Parrish, 


243 


Wilkinson v. Fowkes, 


183, 191 


415 


V. Port Huron Co., . 


168 


V. Wilkinson, 




81 


V. Thompson, . 


79 


Willdey v. Webster, . 




363 


V. Trotter, 


191 


Willenborg v. Murphy, 




363 


V. Turner, 


319 


Williams v. Ayrault, . 




198 


V. Whitney, 


. 114 


V. Beard, 


! 114 


364 


V. Wiggins, 


222 


V. Berry, 


. 196 


356 


V. Williams, 


. 128 


V. Brown, . 




153 


V. Yaw, . 


304 


V. Chard, 




407 


White's Trusts, . 


30 


V. Cox, 


. 233, 


454 


Whitebread v. Bennett, 


. 138 


V. Craig, 




270 



Ixxxiv 



TABLE OF AMERICAN CASES. 



Williams v. Fitch, 




6 


V. Hall, 


196 


356 


V. Harden, . 




20 


■V. Harrington, 




285 


V Helme, 




270 


V. Hodgson, 




240 


V. Hubbard, 




335 


■V. Jenkins, . 


354 


355 


V. Lambe, . 




162 


V. Lockwood, 




198 


V. Martland, 




364 


V. Mears, 




101 


V. Meeker, . 




109 


V. Morten, . 




251 


V. Otey, 




156 


V. Page, 


. 


314 


V. Philpot, . 




363 


V. Powell, . 




184 



V. Presb. Soc, 303, 306, 335 
V. Roberts, . . 128, 198 
V. Savage Manuf. Co., 16, 227, 
228, 346 



V. Sexton, . 






306 


V. Stratton, . 




, 


123 


V. Townsend, 




. 


114 


t). Warren, . 






192 


V. Washington 
V. Weel, 


) • 




272 
310 


V. Wiggand, 
V. Williams, 


16, 29 


. 230 
, 65, 360 


V. Young, . 






128 


Williams' Case, . 




285, 286 


Williamson v. Branch Bank, 




251 


V. Brown, 






151 


V. Williamson, 




103 


V. Wilson, 


241, 


243, 246 


Willing V. Peters, 




136, 137 


AVillis V. Greenhill, . 






151 


V. Henderson, . 






363 


V. Willis, , 






292 


Wilson V. Allen, 






364 


V. Arney, 

V. City Bank, . 

V. Coles, 


• 




95 
323 
139 


V. Drumrite, . 


. 




110 


V. Hamilton, . 






. 312 


V. Hart, . 


, 




152 


V. Mace, 




19 


6, 356 


V. Mallett, 


220, 


22 


1, 222 


Matter of. 






285 


V. Miller, 






157 


V. Russell, 


. 




110 


V. Shoenberger, 
V. Stolley, 
V. Towle, 






111 
. 308 
. 363 


V. Troup, 
V. Wilson, 


110, 


11 


3, 121 
45 


Wilt D.Franklin, 






. 37 


Wilton V. Harwood, . 






, 86 


V. Hill, . 


. 




. 45 



Winborn v. Gorrell, . 
Winch V. Birkenhead, &c., 

Co., ... 

Winchester v. Winchester 
Wing V. Cooper, 
Wingart v. Fry, . 
Wingate v. Dail, 

V. Haywood, . 
Wingfield v. Crenshaw, 
Winn V. Albert, 

V. Elliott, 
Winne v. Reynolds, . 
Winnipiseogee Lake Qo.v. Wors 

ter, 
Winnipiseogee Lake Comp 

Young, . 
Winship v. Pitts, 
Winslow V. Chiffelle, . 
Winter v. Gerol, 
Wintermute v. Snyder, 
Winters v. Henderson, 
Wise V. Lamb, . 
Wiselay v. Findlay, . 
Wiser v. Blackly, 
Wisner v. Barnet, 
Wiswall V. McGowan, 
Withers v. Yeadon, . 
Witman v. Lex, . 
Witmore v. White, 
Witter V. Richards, , 
Woddrop V. Price, 
Wolbert v. Harris, 
Wolcott V. Melick, 
Wolf V. Corby, , 
V. Wolf, . 
Wollaston v. King, 
WoUstonecraft, Matter of, 
Womble v. Battle, 
Wood V. Barringer, . 

V. Burnhara, 

V. Chapin, 

V. Clute, . 

V. Cone, . 

V. Gault, . 

V. Majoribanks, 

V. Patterson, 

V. Shepherd, 

V. Sutcliffe, 
Woodbury Savings Bank 

surance Company, . 
Woodcock v. Bennett, 
Woodtolk V. Blount, . 
Woodgate v. Fleet, . 
Woodruff V. Depue, . 
Woodrum v. Kirkpatrick, 
Woods V. Bailey, 
V. Farmere, 
V. Hildebrand, 
V. Morrell, 
V. Wallace, 



157, 162 
R. R. 

212 

417 

111 

84 

86 

198 

211 

412 

233 

84 



363 



210, 302 
any v. 

309 
208 
246 

61 
168 
270 
376 
230 
16, 399 
303 

90 

30 

69 

86 
243 
243 
243 
211 

33 
334 

94 
280 
128 
302 

40 
151 
230 

33 
241 

84 

356 

192 

211 

In- 

171 

78, 305, 379 

151 

33 

270 

45, 399 

128 



37, 



10, 306 



153 
114 
344 
111 



TABLE OF AMERICAN CASES, 



Ixxxv 



Woods V. Woods, ... 94 
Woodson V. Palmer, . . . 392 
Woodward v. Schatzell, . . 360 
V. Wood, . . 314, 315 
Woodworth v. Rogers, 356 

r. Wilson, . 317 

Wooldridge v. Wilkins, . . 246 
WooUam v. Hearne, 33, 85, 111, 168, 

172 

V. Ratcliflfe, . . .217 

Woolsey v. Judd, . . .214 

Woolstencroft v. Woolstencroft, 264 

Wootten V. Burch, . 8, 308, 344 

V. Copeland, . . .230 

Work I'. Harper, . . .153 

Works I'. Junct. R. R., . . 208 

Wormack v. Rogers, . . .174 

Wormley v. Wormley, . . 156 

Worth V. McAden, ... 37 

Worthington v. Lee, . . 317, 333 

Worthy v. Johnson, . . . 310 

Wragg's Rep. v. Comp. Gen., . 128 

Wright V. Arnold, .184 

V. Austin, . . .268 

V. Brown, ... 46 

V. Crump, . . .268 

V. Cumsty, . . .239 

V. Dame, . . 128, 303 

V. Delafield, . . .168 

V. Douglas, ... 28 

V. Grist, . . . 356 

V. Holbrook, . . .261 

V. Linn, .... 67 

t'. Lukes, . . .351 

V. Marsh, . . . 230 

V. Meek, . . .408 

V. Snowe, . . . 176 

V. Tatham, ... 25 

V. Trustees Meth. Epis. 

Church, . . 139, 277 

V. Vanderplank, . . 184 

V. Vernon, . . . 413 

V. Wilson, . . 79, 174 

V. Wright, . . 311, 364 

V. Young, ... 90 

Wrigley v. Swainson, . . 180 

Wyatt V. Elam, . . . .153 

Wyche v. Green, ... 79 

Wyckofff. Sniffen, ... 10 



Wylder v. Crane, 
Wyllie V. Ellice, . 
Wynn v. Wilson, 
Wynne v. Tunstall, 
Wyse V. Smith, . 
Wythe V. Hennicker, 

Yale V. Dederer, 
Yancey v. Mauck, 
Yancy v. Fenwick, 

V. Green, . 
Yard v. Patton, . 
Yaryan v. Shriner, 
Yates V. Donaldson, 
V. Monroe, 
V. Tisdale, 
Yeates v. Pryor, 
Yeatman v. Wood, 
Yeomans v. Williams 
Yonge V. Reynell, 

V. Shepard, 
Yordon v. Hess, . 
York V. Gregg, . 
Young V. Bampass, 

V, Bilderback, 

V. Coleman, 

V. Colt, . 

Ex parte, 

V. Frost, . 

V. Keogh, 

V. Lyons, 

V. Pate, . 

V. Rathbone, 

V. Wright, 

V. Young, 
Youngman v. Elmira R 



R. 



Zabriskie v. The Jersey C 
R.Co., 
V. Vreeland, 
Zeigler v. Eckert, 
V. Long, . 
Zeisweiss v. James, 
Zeiter v. Bowman, 

V. Zeiter, . 
Zentmyer v. Mittower, 
Zinc Co. V. Franklenite Co 
Zuleuta V. Vinent, 



. 363 

. 281 

, 198 

. 231 

. 261 

. 275 

. 46 
. 128 
. 303 
. 85 
. 269 
. 128 
. 269 
. 314 
. 203 
. 177 
. 246 
. 106 

267, 268 

. 356 

6 

. 177 

. 179 

. 315 

. 309 

9 

. 268 

90, 232 

. 285 

269, 319 
. 312 
. 84 
. 84 
. 45 

117, 315 

ty R. 

211 

196 

106 

U70 

70 

157 

106 

128 

208, 397 

. 356 



THE 



DOCTRINE OF EQUITY 



INTRODUCTION. 



The subject of the present Treatise is the prerogative 
jurisdiction of the Great Seal for giving effect to certain 
civil rights, technically called Equities, where the ordi- 
nary process of law is inadequate. 

By the original system of English jurisprudence as ex- 
plained by Lord Chief Justice Hale, the whole judicial 
authority of the Crown was exercised by the King in 
person, sitting in his Royal Court, called the Aula or 
Curia Regis. Portions of this authority were afterwards 
delegated to the courts of law ; and where an injury had 
been committed, which the authority of those courts was 
adequate to redress, a writ under the Great Seal was 
issued out of chancery, called an original writ, directed 
to the sheriff of the county where the injury was alleged 
to have been committed, containing a summary statement 
of the cause of complaint, and requiring him to bring the 
wrongdoer before the proper court of law, there to answer 
the plaintiff's charge. The use of original writs in per- 
sonal actions is now abolished. But such a writ was 
1 



A ADAMS S DOCTRINE OF EQUITY. 

formerly essential to the institution of any action in the 
superior court of law, and in real and mixed actions it is 
still necessary. The portion of the royal authority which 
was not thus delegated to the courts of law appears to 
have remained in the Sovereign as a branch of the pre- 
rogative, and to have been naturally intrusted to the Lord 
Chancellor as the minister in whose custody the Great 

Seal was placed.' The *manner of its exercise 
r xxxT 
L -■ was by another writ, also issuing under the Great 

Seal, called the writ of subpoena, which was directed to 
the defendant personally, and commanded him under a 
penalty to appear to answer such things as were alleged 
against him, and to abide by the decree which should be 
made. The principle by which its exercise was regulated 
appears to have been the one above stated, viz., that of 
affording an effectual remedy, where the remedy at com- 
mon law was imperfect, but not, as has been sometimes 
erroneously supposed, that of creating a right which the 
common law had denied. 

The existence of this prerogative or equitable jurisdic- 
tion seems to be in a great decree peculiar to this country, 
and to pervade the whole system of its judicial polity.^ 
The Court of Exchequer, established for enforcing pay- 
ment of debts and duties to the King, and incidentally 
administering justice to the debtors and accountants to 
the Crown, was, until the recent abolition by statute of 
its equitable jurisdiction, subdivided into a court of equity, 
and a court of common law ; and there are also several 
inferior courts of equity, which exercise exclusive juris- 
diction over matters within their cognisance, having their 

^ Hale's Jurisdiction of H. L. ; King v. Hare, 1 Str. 150 ; 1 Story on Eq., 
8. 41-49 ; 3 Steph. Black. 407 ; Steph. on Plead. 5. 
•■' Mitf. 6, 50, 151. 



INTRODUCTION. 6 

own peculiar courts of appeal, and without any appellate 
jurisdiction in the Court of Chancery. If, however, a 
suit be commenced in those courts, where the cause of 
suit is without their jurisdiction, or where by reason of 
the limited jurisdiction of the court the defendant cannot 
have complete justice, the defendant, before decision of 
the suit, may file a bill in the High Court of Chancery, 
showing the incompetency of the inferior court, and pray- 
ing a special writ of certiorari to remove the cause into 
the Court of Chancery. The principal inferior jurisdic- 
tions in England which have cognisance of equitable cases, 
are those of the counties Palatine of Lancaster and Dur- 
ham, the Courts of the two Universities of Oxford and 
Cambridge, the Courts of the City of JiOndon, and the 
Cinque Ports. The County Palatine of Chester, and the 
Principality of Wales, had also, formerly, courts of equit- 
able jurisdiction, but these courts are now abolished.^ 

The earliest instances which have been hitherto pub- 
lished of the exercise *of the prerogative juris- r-^ .-, 
diction of the Great Seal, are found in a series 
of Chancery records commencing with the reign of Richard 
2, and ending with that of Elizabeth, which was published 
in 1827, 1830, and 1832, by the Record Commissioners.'^ 

Some of the petitions contained in this collection ap- 
pear to have been merely presented to the Chancellor, as 
the official framer of ordinary writs, to obtain a suitable 
one for the plaintiff's case ; others, especially during the 
reigns of Edward 4, Henry 6, and Henry 8, are for a writ 
in the nature of a habeas corpus to have the complainant 

^ Mitf. on Pleading 6, 50, 151; 1 Daniel's Chancery Practice 509; 1 
Maddock's Chancery Practice 249 ; I Equity Draftsman 131 ; 5 Vict, c.5; 
11 Geo. 4 & 1 Wm. 4 c. 70, s. 14. 

* Calendar of Chancery Proceedings, vols. 1, 2 and 3. 



4 ADAMS's DOCTRINE OF EQUITY. 

released from an illegal imprisonment; but in the majority 
of instances they appeal to the prerogative jurisdiction of 
the Chancellor, and pray, not that the wrong complained 
of may be remedied at law, but that the Chancellor will 
examine the parties, and give appropriate redress. 
I In many cases a special ground is alleged for calling 
on the Chancellor to exercise a jurisdiction, which would 
Qaturally fall within the province of the common law 
Courts. One of the grounds so alleged, and which strongly 



marks the character of the age, is the difficulty of obtain- 
ing justice by reason of the wealth and power of the 
wrongdoer. Thus in one case, it is said that the plaintiff 
cannot have any remedy at law in consequence of the de- 
fendant being surrounded by many men of his mainte- 
nance. In another, that the defendant is strong and 
abounding in riches, and a great maintainor of quarrels, 
and the complainant is poor, and hath not the means to 
sue for remedy at the common law. In a third, the relief 
is prayed, ^'because your petitioners, John and Catherine, 
re so poor, and the said John so ill, that they cannot pur- 
ue the common law." Of this sort of jurisdiction there 
are many instances, but in one case, towards the end of 
Henry the Eighth's reign, the prayer is, that the peti- 
tioner, who had been restrained by injunction from pro- 
ceeding at law, " may be relieved from the prohibition, 
because he is a poor man, and unable to sue in the King's 
Court of Chancery."^ 

The jurisdiction exercised on the ground of poverty or 
overbearing power has necessarily died with the state of 
society in which it originated ; but it appears, like the 

^ Goddard v. Ingepenne, 1 Chan. Cal. viii. ; Thomas v. Wyse, Id. xiv. ; 
Bell V. Savage, Id. xir. ; Royal v. Garter, Id. cxxx. 



INTRODUCTION. 5 

present jurisdiction of *the Court, to have been p^ ..-, 
based on the principle of giving an efficacious 
remedy for a right existing at law, and many instances 
occur in the records where the ordinary doctrines of 
modern equity are brought forward as the grounds for 
relief. The most frequent of these equities, especially 
in the latter years of Henry 6, and in the subsequent 
reigns, is for enforcing conveyances by feoffees in trust ; 
but many other ordinary equities occur. Thus, for ex- 
ample, we find a bill seeking to set aside a conveyance 
which the defendant had obtained by intoxicating the 
plaintiff;^ a bill by a tithe-owner to obtain payment for 
his tithes f a bill stating that the plaintiff had recovered 
her land at law, but that the defendant continued vexa- 
tiously to harass her and seeking to have him restrained;^ 
a bill by an executor, stating that the defendant had by 
a trick obtained from him a general release, when he was 
ignorant of a debt due from the defendant to his testator, 
and intended the release to apply to other matters, and 
praying an injunction against setting it up at law as a 
discharge of that debt;* a bill against an executor for 
payment of his testator's debt f a bill to perpetuate tes- 
timony;^ a bill for discovery of title deeds ;^ and a bill 
for specific performance of a contract.' 

It must not, however, be supposed that in all the peti- 
tions to the Chancellor contained in these records the 

* Stonehouse v. Stanshaw, 1 Ch. Cal. xxix. 
' Arkenden p. Starkey, Id. xxxv. 

^ Freeman p. Pontrell, Id. xlii. 

* CobbethofB c. Williams, Id. H. 

' Vavasour c. Chadwick, Id. xciii. 
« Earl of Oxford v. Tyrrell, Id. cxx. 
' Baker r. Parson, 2 Chan. Cal. 1. 

* Tyngelden r. Warham, Id. liv. 



6 ADAMs's DOCTRINE OF EQUITY. 

principles of modern equity were rigorously observed; 
or even that it was the uniform practice to set out any 
special ground for interference. In many instances the 
doctrines of equity, may be traced ; but there are many 
others, where the complaints made are merely of violent 
assaults, or of other wrongs which might apparently have 
been redressed at law. And we sometimes find the juris- 
diction resisted on that ground. Thus, for example, in 
one of the cases already referred to, the bill, after men- 
tioning the subtraction of the plaintiff's tithes, complains 
also that the defendant had violently driven away his 
sheep, and the defendant, after answering to the former 
rsc -"-i charge, says with reference *to the latter, "that 
the same is determined at the common law ; 
Wherefore he understands not, that the King's Court 0/ 
his Chancery in this case will have knowledge ; neverthe- 
less, for declaration of the matter to you, my Lord Chan- 
cellor, the defendant saith that he never took nor drove 
away any sheep of the said complainant." And in a sub- 
sequent case we find the defendant alleging that some of 
the matter contained in the bill is, " matter triable at the 
common law, by action of trespass or false imprisonment, 
the which matter ought not by the King's law of this land, 
to be determined in this Court :" and that other matters 
in the bill alleged are, in like manner determinable at the 
common law, by assize of novel disseisin, and by writ of 
dower : " nevertheless," he goes on to say, " for the truth 
and plainness of the matter, he denies having done the 
acts complained of."^ 

Whether this last class of cases were ever properly 
within the jurisdiction of the Chancellor may admit of 
some doubt. That they are not so now is unquestionable ; 

^ Arkenden v. Starkey, 1 Ch. Cal. xxxv. ; Harry v. Lyngeyn, Id. xlix. 



INTRODUCTION. ' 7 

and, from the earliest time when such jurisdiction was 
claimed, down to the time of its final abandonment, we 
find a perpetual struggle going on against its authority.^ 

The first instance of this opposition occurs in the 13th 
year of Richard 2 (A. D. 1389), when the Commons pe- 
titioned that no man might be brought before the Chan- 
cellor or the King's Council for matters remedial at the 
common law. But the only answer given by the King 
was, that "he would keep his regality as his predecessors 
had done before him."^ In four years afterwards (A. D. 
1393—4), on a second petition being presented to the same 
effect, a partial remedy was granting by a statute, which 
authorized the Chancellor to give costs to the defendant, 
where writs of subpoena should have been obtained on 
untrue suggestions.^ In the first year of Henry 4 (A.D. 
1399), a similar petition was again presented, and the King 
answered that " the statutes should be kept except where 
one party was so great and rich, and the other so poor, 
that he could not otherwise have remedy."* In the fourth 
*year of the same reign (A. D. 1402), the Com- 1-^ . -, 
mons again made the usual complaint, alleging 
that, according to the Statutes of Edw. 3, no man ought 
to be imprisoned or put out of his freehold except by the 
processes of common law. The King, however, in this 
instance distinctly asserted his own jurisdiction; and his 
answer was, that "he would desire his officers to abstain 
more from sending for his subjects than they had hitherto 
done ; but that it was not his intention that they should 
refrain from so doing in reasonable causes, as had been 

^ Rotuli Parliamentorum ut et Petitiones et Placita in Parliamento, vol. 
iii. 1377-1411 ; vol. iv. 1413-1436. 

^ Rot. Pari. 266. » Ibid. 323. •* Ibid. 446. 



8 ADAMS's DOCTRINE OF EQUITY. 

done by his good progenitors."^ This answer, however, 
was far from giving satisfaction to the Commons; and, 
in the third and ninth years of his successor (A.D. 1451 
and 1421), we find- them speaking in very angry terms of 
the writ of subpoena, and alleging that such writs were 
never granted or used before the time of the late King 
Richard, "when John de Waltham, of his subtlety, first 
found out the novelty, contrary to the form of the com- 
mon law of the realm."^ The King still refused to abolish 
the writ; but, from an inspection of the records already 
referred to, it is apparent that the instances of interfer- 
ence with the common law were at this time gradually 
decreasing. The last petitions which we meet with on 
this subject were presented in the reign of Henry 6, and 
were couched in the usual terms, praying that the writ of 
subpoena might not issue for matters determinable at the 
common law; but the only answer given was a direction 
that "the statutes which already existed should be ob- 
served, and that no writ of subpoena should be granted 
unless the plaintiff gave proper security for costs." 

This is the last time we meet with any petitions hostile 
to the jurisdiction, and from the tenor of all the remon- 
strances made, as well as from that of the bills which 
appeared in the calendar, it seems obvious that the ac- 
knowledged jurisdiction of Chancery was in cases where 
the common law gave or admitted a right, but which were 
irremediable by its process. We do not find either in the 
remonstrances or in the bills any trace of a jurisdiction 
to give relief, on the ground that the strict law had denied 
a right which, in the Chancellor's view of justice, ought to 
have been admitted. 

If such an authority had ever been claimed, the com- 
1 3 Rot. Pari. 506. =» 4 Ibid. 84, 156 



INTRODUCTION. • y 

plaints of the Commons would surely have been, not that 
decisions were made by an ^irregular authority, p^j. -i 

and under an irregular process, but that when 
made they were contrary to law. This, however, is not 
the case; but the only objection made is, that whereas 
certain matters ought to be decided by a Court of law, 
they were decided by the Chancellor, and the very pledge 
which was in one instance given that the Chancery should 
not interfere in matters of common law, " unless where 
one party is so rich and the other so poor that justice 
cannot otherwise be obtained," clearly points to a class of 
cases in which a right existed according to law, but in 
which, for some reason or other, the common law remedy 
was ineffectual. 

The same principle still governs the jurisprudence of 
the Court. It does not create rights which the common 
law denies ; but it gives effectual redress for the infringe- 
ment of existing rights, where, by reason of the special 
circumstances of the case, the redress at law would be 
inadequate. 

The manner of redress at law is by a judgment for the 
plaintiff, entitling him to recover, as the case may be, 
either possession of his property or damages for its de- 
tention or injury, followed by a writ of execution to the 
sheriff, requiring him to give effect to the judgment ob- 
tained. If this redress be sufficient there is no jurisdic- 
tion in equity ; and, in accordance with this principle, it 
is held that the Court of Chancery cannot assess damages, 
or decree possession of land or payment of rent under a 
legal title ; for in the one case the assessment may be 
made by a jury, in the other the possession may be ob- 
tained by ejectment, and the intermediate rent may be 
recovered either by assumpsit for use and occupation or 



10 ADAMS's DOCTRINE OF EQUITY. 

by trespass for mesne profits. The manner of redress in 
Chancery is by a decree against the wrongdoer, compell- 
ing him specifically to make good his default ; and there- 
fore if the wrong require specific redress, and such specific 
redress is not attainable at law, there is a prerogative 
jurisdiction in equity to relieve. And whether specific 
redress be requisite or not, the inability of the common 
law Courts to examine the defendant creates, in all cases 
of civil wrong, a jurisdiction in equity to that extent. 

The jurisdiction, however, is confined to civil suits, and 
cannot be extended to the trial of crime. It is the right 
of every man, when charged as a criminal, to be exempt 
from giving evidence against himself, and to have his guilt 
or innocence tried by a jury. And, therefore, in all crimi- 
nal proceedings, and in those also which *may 
'- -^ be termed quasi-criminal, such as a mandamus, 

a quo warranto, or the enforcement of a penalty or for- 
feiture, there is no jurisdiction in equity (unless conferred 
by special enactment), either to compel discovery or to 
afford relief.^ 

The jurisdiction over civil rights is founded, as we have 
seen, on the writ of subpoena ; and, in accordance with the 
requirements of that writ, is exerted for a double purpose, 
viz. : 1. For discovery, compelling the defendant to answer 
/ the complaint ; and 2. For relief, compelling him to per- 
form the decree. 

The Court of Chancery, in enforcing discovery, does 
not depart from the general policy of the law. It requires 
a defendant to discover the truth of the plaintiff's claim, 
notwithstanding that he is himself the party sued ; but it 
does not require him to answer questions which on grounds 

^ Story on Plead. 553 ; Re Hertford, 1 Hare 584 ; Attorney-General v. 
Lucas, 2 Hare 566. 



INTRODUCTION. 11 

of general policy he is entitled to resist. In accordance 
with this principle it is held, first, that no man need dis- 
cover matters tending to criminate himself, or to expose 
him to a penalty or forfeiture ; secondly, no man need 
discover legal advice which has been given him by his 
professional advisers, or statements of fact which have 
passed between himself and them in reference to the dis- 
pute in litigation ; and thirdly, that official persons must 
not disclose matters of State, the publication of which 
may be prejudicial to the community. 

Subject to these restrictions, every competent defend- 
ant in equity must answer on oath as to all facts material to 
the plaintiff's case. He must answer to all and not to a 
portion only. And he must answer distinctly, completely, 
without needless prolixity, and to the best of his infor- 
mation and belief. He is also bound, if required by the 
plaintiff, to set forth a list of all documents in his posses- 
sion or power from which similar discovery can be ob- 
tained ; and if the possession of such documents and their 
character as fit subjects of discovery can be shown from 
this answer, he must permit the plaintiff to inspect and 
copy them. 

The jurisdiction thus exercised for enforcing discovery 
is available in aid of proceedings of civil relief, whether 
such relief be asked from the Court of Chancery, or from 
any other public tribunal which is itself unable to enforce 

discovery. If the consequent relief *be attain- r* •n 

•^ . ^ pxxxvii I 

able in equity, a prayer to that effect is intro- 
duced in the bill, which is then termed a bill for relief, of 
more correctly for discovery and relief. If it be attain- 
able in a different Court, the mere fact that discovery is 
requisite will not alter the jurisdiction. The Court of 
Chancery will compel the discovery, but the relief must 



^ 



12 ADAMS'S DOCTRINE OF EQUITY. 

be sought before the appropriate tribunal, and the bill is 
for discovery alone. 

In addition to the jurisdiction for discovery, there is 
another substantially similar under which the Court of 
Chancery interposes ; namely, for the procurement of evi- 
dence to be used elsewhere, without itself deciding on 
the result, viz., in suits for a commission to examine wit- 
nesses abroad, and in suits for the perpetuation of testi- 
mony where the subject-matter cannot be immediately 
investigated; and for granting, in aid either of its own 
proceedings or of a proceeding elsewhere, the peculiar 
remedy termed an examination de bene esse. 

The jurisdiction of equity to grant relief originates, as 
we have seen, in the occasional inadequacy of the remedy 
at law, and the supplemental character which it thus sus- 
tains gives rise to two important maxims : the one, that 
" equity follows the law ;" the other, " that he who would 
have equity must do equity." The former maxim, that 
" equity follows the law," imports that if a legal claim, 
i. €., a claim triable at law, be contested in equity, it will 
be decided in accordance with the legal right, if the con- 
tested claim be equitable, i. e., triable in equity alone, the 
decision will follow the analogy of law. The latter maxim, 
that " he who would have equity must do equity," imports 
that where a party, not content with his legal remedy, 
seeks the supplemental aid of equity, he must give effect 
to all equitable rights in his adversary respecting the 
subject-matter of the suit. 

The cases of inadequacy at common law, which origi- 
nate the supplemental jurisdiction of equity, may be con- 
veniently divided under two heads, viz. : 1. Where the 
Courts of ordinary jurisdiction cannot enforce a right; 
and 2. Where they cannot administer it. 



INTRODUCTION. 13 

The equities under the first head of this division, viz., 

where the Courts of ordinary jurisdiction cannot enforce 

a right, are those for performance of trusts and contracts; 

for election between inconsistent benefits; for completion 

of gifts on meritorious consideration in favor of the 

donor's intention after his death; for giving effect to 

*discharores by matter in pais of contracts r* •••t 

° '' . - . . I*xxxvuij 

under seal; for rehef against penalties and 

forfeited mortgages; for re-execution or correction of 
instruments which have been lost or erroneously framed; 
for setting aside transactions which are illegal or fraudu- 
lent, or which have been carried on in ignorance or mis- 
take of material facts ; and for injunction against irrepar- 
able torts. 

The jurisdiction to enforce performance of trusts arises 
where property has been conferred upon, and accepted 
by, one person on the terms of using it for the benefit of 
another. The former person, or owner at law, is called 
the trustee ; the latter or owner in equity the cestui que 
trust. And it is manifest that the trustee, being the ad- 
mitted owner at law, may deal with the property at law 
as his own, and that the equitable ownership, or right to 
compel performance of the trust, is only cognisable in the 
Court of Chancery. 

In order to originate a trust, two things are essential : 
first, that the ownership conferred be coupled with a trust, 
either declared by the parties or resulting by presumption 
of law ; and secondly, that it be accepted on those terms 
by the trustee. The consequence of its creation and ac- 
ceptance is, that the property is subjected to a double 
ownership, an equitable ownership in the cestui que trust, 
and a legal ownership in the trustee. 

The equitable ownership is in strictness a mere chose 



14 ADAMS's DOCTRINE OF EQUITY. 

in action, or right to sue a subpoena against the trustee ; 
but it is considered in equity the estate itself, and is 
generally regulated by principles corresponding with those 
which apply to an- estate at law. The terms in which it 
is declared are interpreted by the same rules ; it is sub- 
ject to the same restraints of policy, and is governed by 
the same laws of devolution and transfer. The analogy, 
however, which exists between the two forms of owner- 
ship, is not free from exception. The legal rules of in- 
terpretation, though uniformly applicable to an executed 
trust, i. e,, a trust of which the scheme has in the outset 
been completely declared, are not applied with equal 
stringency in determining the limitations of an executory 
trust, i. e., a trust where the ultimate object has been 
alone denoted, with a direction to effectuate that object 
in some convenient way. The .legal restraints of policy, 
though generally binding an equitable estate, admit in 
that respect of two singular exceptions ; the one in what 
are called the separate use and pin-money trusts, enabling 
a married woman to hold property independent of her 
r^ . -1 husband, and allowing *such property to be 
made inalienable; the other in what is called 
the wife's equity for a settlement, restraining the hus- 
band's rights over her equitable chattels real and choses 
in action until an adequate settlement has been made. 
And in respect also to the devolution of trusts, there are 
two exceptions to the general rule ; the one real in their 
exemption from dower, the other apparent in the attendance 
of satisfied terms on the inheritance, so that the trust 
devolves on the real instead of the personal representative. 
The means by which an equitable ownership is trans- 
ferred or charged, where its subject-matter is personal 
estate, are analogous to those which apply to a legal own- 



INTRODUCTION. 15 

ership, rather than strictly identical with them. The dis- 
tinction originates in the doctrine that personal property 
passes at law by mere delivery, which, where an equitable 
interest is transferred, may not be practicable; and, there- 
fore, in order to pursue as nearly as possible the analogy 
of law, it is required that the assignment of an equitable 
interest should be perfected by notice to the trustee, so 
as to deprive the assignor of subsequent control and to 
effect a constructive delivery to the assignee. It is other- 
wise with respect to real estate. For real estate passes 
by title, and not by delivery ; and the character of the 
grantor's interest, whether legal or equitable, does not 
affect the terms of his deed. The principle of construc- 
tive delivery by notice to the trustee is applied also to a 
debt or other chose in action. The right of recovering 
such an interest, like that of enforcing a trust, is in strict- 
ness merely a right of litigation, and except in the case 
of negotiable securities, is not capable of transfer at law. 
But if it be in substance a right of property, it is treated 
in equity as of that character, and may be transferred by 
an assignment or agreement to assign, perfected by notice 
to the party liable. 

The legal ownership of the trustee confers on him at law 
an absolute dominion, but is considered in equity as sub- 
servient to the trust ; so that the trustee is bound to use 
it for those purposes, and those only which were contem- 
plated by the grantor; to account for and protect the 
property whilst the trust continues ; to restore it to the 
parties entitled when the trust is at an end ; and not to 
avail himself of his fiduciary character for any object of 
personal benefit. If he performs his duties, he may claim 
indemnity against all personal loss ; but if he fail in their 
performance, he is liable, at the option of the cestui que 



16 ADAMS's DOCTRINE OF EQUITY. 

trust, either to replace the property in its rightful 
*state, or to account for any benefit which has 
•- -■ ■ accrued ; nor will the mere lapse of time, if unac- 
companied by knowledge and acquiescence on the part of 
the cestui que trust, discharge him from this liability. 

Besides the ordinary trusts which we have just con- 
sidered, there is another class of trusts — those for chari- 
table and public purposes, where the legal ownership is 
conferred on a fiduciary holder, but the trust is declared 
for general objects, and not for the benefit of a specific 
owner. The incidents of a trust of this class are, for 
the most part, the same with those of one for ordinary 
purposes. But there are two principal distinctions ; the 
one, that a charitable trust is not affected by lapse of time 
in the same manner as a trust for private persons ; the 
other, that w^here an apparent charitable intention has 
failed, whether by an incomplete disposition at the outset, 
or by subsequent inadequacy of the original object, effect 
may be given to it by a ci/ pres or approximate apjDlica- 
tion, to the exclusion of a resulting trust for the donor. 

The jurisdiction of equity for superintending a chari- 
table trust is called into action by information of the 
Attorney-General, suing on behalf of the Crown. It 
extends in the case of unincorporated charities, to their 
internal administration as well as to the management of 
their estates. But in the case of eleemosynary corpora- 
tions it is confined to the latter object ; and the internal 
administration of such charities, together with the elec- 
tion and amotion of corporators, is exclusively subject to 
the jurisdiction of a visitor. In addition to the jurisdic- 
tion of the Court of Chancery over charities, a special 
jurisdiction was created by 43 Eliz. c. 4, called the Statute 
of Charitable Uses, to be exercised by commissioners ap- 



INTRODUCTION. 17 

pointed by the Crown. But their jurisdiction has now 
fallen into disuse. And there is also a summary jurisdic- 
tion in equity, to be enforced on petition, instead of 
information or bill, created by 52 Geo. 3, c. 101, com- 
monly known as Sir Samuel Romilly's Act. 

The jurisdiction of compelling performance of a con- 
tract involves the consideration, not merely of what is 
technically termed specific performance, but also of the 
doctrines of election, of meritorious or imperfect conside- 
ration, of the discharge by matter in pais of contracts 
under seal, and of relief against penalties and forfeited 
mortgages. 

The equity to compel specific performance of a contract 
arises where a contract binding at law has been infringed, 
and the remedy *at law by damages is inadequate. ^ y-i 
And in order to originate this equity, it is essen- 
tial that the contract shall have been made for valuable 
consideration, and that its enforcement in specie be prac- 
ticable and necessary. 

The first requisite is, that the contract be made for 
valuable consideration. For so long as a promise rest in 
fieri, there is not, in the absence of such consideration, 
any equity to insist on its performance. It is otherwise 
if the promise has been already executed, either by the 
transfer of the legal ownership, or by the creation of a 
final trust. The exact line of demarcation, where the 
contract ceases to be an executory agreement and be- 
comes a perfected trust in equity, is often difficult to dis- 
tinguish. But the principle itself is sufficiently clear. 
If the donor has perfected his gift in the way which he 
intended- so that there is nothing left for him to do, and 
nothing which he has authority to countermand, the 

donee's right is enforceable as a perfected trust, and the 
2 



18 ADAMs's DOCTRINE OF EQUITY. 

consideration is immaterial. If, on the contrary, the 
transaction is incomplete, and its final completion is asked 
in equity, the court will not interpose to perfect the lia- 
bility without first inquiring into the origin of the claim 
and nature of the consideration. 

The second requisite is, that the enforcement in specie 
be practicable ; and therefore, if the contract is one 
which the party making it is unable to perform, or which 
the Court is unable practically to enforce, performance 
will not be decreed; and the same result will frequently 
follow where enforcement is sought against the defendant, 
but a corresponding performance by the other party 
cannot be secured. 

The third requisite is, that the enforcement in specie 
be necessary as well as practicable; and therefore, if the 
possession of the specified thing is not essential, but a 
compensation in damages will redress its loss, the Court 
will not interpose. And in determining on its necessity, 
the effect on both parties will be taken into consideration; 
and specific performance may be refused, if there has 
been any unfairness on the part of the plaintiff, or if the 
defendant has entered into the contract by mistake, or 
even on the mere ground that the contract is a hard one, 
and that its enforcement in specie would press heavily on 
him. 

In applying this equity to contracts relating to real 
estate,. there are some modifications of legal rules which 
P^ ,..-, at first sight appear inconsistent *with them, and 
repugnant to the maxim, that "equity follows 
the law." The modifications here referred to are those of 
enforcing parol contracts relating to land, on the ground 
that they have been already performed in part; of allow- 
ing time to make out a title beyond the day which the 



INTRODUCTION. 19 

contract specifies ; and of allowing a conveyance with 
compensation for defects. The wisdom of permitting any 
deviation is a subject admitting of much doubt. But 
the particular doctrines now in question are fully estab- 
lished by the course of precedent, and may perhaps be 
considered, not so much deviation from the rule of law, 
as subordinate equities, or developments from the ori- 
ginal doctrine, that specific performance of a contract, 
and not pecuniary compensation for its breach, is the 
equitable measure of redress. 

The first of these subordinate equities is that of enforc- 
ing parol contracts relating to land, on the ground that 
they have been already performed in part. A parol con- 
tract in relation to land is made incapable of enforcement 
by the Statute of Frauds; and, so long as the contract re- 
mains in fieri, it is alike ineffectual at law and in equity- 
It sometimes, however, happens that a contract which is 
still in fiefri at law, has been already performed by con- 
struction of equity; for if it is one of which specific per- 
formance would be decreed, it is itself in some sort an 
equitable title ; and if the parties have clothed that title 
with possession, or have otherwise acted on it as an exist- 
ing ownership, they are held to have perfected their 
agreement in equity, and if the terms of their parol con- 
tract can be proved, may be decreed to perfect it by a 
conveyance at law 

The second equity is that of allowing time to make out 
a title beyond the day which the contract specifies. The 
rule on this point is expressed by the maxim, that " time 
is not of the essence of the contract in equity;" and it 
seems, like that of part performance, to be founded on the 
principle, that the contract itself is in the nature of a title, 
so that if a substantial ownership exists, though the title 



20 ADAMS's DOCTRINE OF EQUITY. 

be not fully cleared on the appointed day, specific per- 
formance may be properly decreed. 

The third equity is that of allowing a conveyance with 
compensation for defects, where a contract has been made 
for sale of an estate, which cannot be literally performed 
in toto, whether by reason of an unexpected failure in the 
title to" part, of inaccuracy in the terms of description, or 
p ,...-, of diminution in value by a liability to a *charge. 
The principle of this equity appears to be, that 
where the property contracted for can be substantially 
transferred, it is against conscience to take advantage of 
small circumstances of variation. The equity for perform- 
ance with compensation may be enforced by either the 
vendor or purchaser, but is of course more readily granted 
to the latter. In either case the defect must be one 
admitting of compensation, and not a mere matter of arbi- 
trary damages, and the compensation given must be really 
compensation for a present loss, and not indemnity 
against a future risk. 

A corresponding relief to that by specific performance 
is given, even in the absence of a contract, in the case of 
title deeds or specific chattels of peculiar value, detained 
from the legitimate owner, by directing them to be de- 
livered up or secured. 

The equities of election and meritorious or imperfect 
consideration are closely connected with the principle 
which has been already stated of enforcing those contracts 
and those only, which are based on valuable consideration. 

The first of these equities is that of election. The 
equity to enforce contracts made for value is extended by 
parity of reasoning to cases where a benefit has been con- 
ferred as the consideration for an act, and knowingly ac- 
cepted, although the party so accepting it may not be 



INTRODUCTION. 21 

bound by an actual contract, or by a condition of perform- 
ance annexed to the gift. The equity of election is anal- 
ogous to this: it applies, not to cases of contract or of 
conditional gift, but to those in which the donor of an 
interest by will has tacitly annexed a disposition to his 
bounty, which can only be effected by the donee's consent; 
e. g., where a testator leaves a portion of his property to 
A., and by the same will disposes of property belonging 
to A. In this case there is no contract by A. to relinquish 
his own property, nor is there any condition annexed to 
the testator's gift, which requires him to do so as a term 
of its acceptance. But the fact that a double disposition 
has been made, implies that he shall not have both the in- 
terests ; and he must therefore elect between the two, and 
must either relinquish his own property or compensate the 
disappointed donee out of the property bequeathed, A 
doubt, however, exists on this last point, and it appears to 
be uncertain whether the consequence of an election to 
take against the will is confined to a liability to compensate, 
or is a forfeiture of the property devised. 

*The doctrine of meritorious consideration origi- p ,. -. 
nates in the distinction between the three classes 
of consideration, on which promises may be based, viz., 
valuable consideration, the performance of a moral duty, 
and mere voluntary bounty. The first of these classes 
alone entitles the promisee to enforce his claim against an 
unwilling promisor ; the third is for all legal purposes a 
mere nullity until actual performance of the promise. The 
second or intermediate class is termed meritorious, and is 
confined to the three duties, of charity, of payment of 
creditors, and of maintaining a wife and children, or per- 
sons towards whom the party promising has placed him- 
self in loco parentis. This class of consideration is not dis- 



22 ADAMS's DOCTRINE OF EQUITY. 

tinguished at law from mere voluntary bounty, but is to 
a modified extent recognised in equity. 

The rule of equity on this subject is, that although a 
promise, made without valuable consideration, cannot be 
enforced against the promisor or any one in whose favor 
he has altered his intention, yet, if a gift on meritorious 
consideration be intended, but imperfectly executed, and 
the intention remain unaltered at the death of the donor, 
there is an equity to enforce the intended gift against per- 
sons claiming by operation of law, without an equally meri- 
torious claim. The principal applications of this equity 
are, in supplying surrenders of copyhold against the heir, 
and in supporting defective executions of powers, when 
the defect is formal, against the remainderman. Another 
class of cases to which the doctrine of meritorious con- 
sideration applies, are those where a man, subject to a 
moral duty, does an act which may have reasonably been 
meant in satisfaction of that duty, and is therefore pre- 
sumed to have so intended it. In accordance with this 
principle, acts which, as between strangers, would bear 
one construction, may be construed differently where me- 
ritorious consideration exists ; e.g., a purchase made by one 
person in the name of another may be construed as an ad- 
vancement in favor of a child, instead of a resulting trust 
for the purchaser. A legacy may be construed a provi- 
sion instead of mere bounty, and may, as such, bear in- 
terest from the testator's death. 

The equities for giving effect to discharges by matter 
m pais of contracts under seal, and for relief against pen- 
alties and forfeited mortgages, are the converse to the 
equity for specific performance. The first of these equi- 
ties originates in the rule of law, that an agreement under 
seal, technically termed an agreement by specialty, can 



INTRODUCTION. 23- 

only *be avoided by another specialty, and that it r* i -i 
is unaffected by matter in pais which would ope- 
rate as a discharge of a simple contract. In equity, the 
rule is otherwise ; for the form of agreement is immate- 
rial, and if the act done is in substance a discharge, it 
will warrant a decree for the execution of a release, or 
for delivery up and cancellation of the specialty. The 
most ordinary application of this equity is in favor of 
sureties, where a guarantee has been given under seal, 
and the creditor, without the surety's consent, has dis- 
charged or modified the principal's liability. 

The second of these equities originated in the rule of 
law, that, on breach of a contract secured by penalty, the 
full penalty might be enforced without regard to the damage 
sustained. The Court of Chancery, in treating contracts 
as matter for specific performance, was naturally led to 
the conclusion that the annexation of a penalty did not 
alter their character ; and, in accordance with this view, 
restrained proceedings to enforce the penalty on a subse- 
quent performance of the contract itself, viz., in the case 
of a debt, on payment of the principal, interest and costs, 
or, in that of any other contract, on reimbursement of the 
actual damage sustained. A similar authority is now con- 
ferred by statute on courts of law, but the equitable juris- 
diction is not destroyed. The same relief has been granted 
on clauses of re-entry for non-performance of covenants 
in a lease ; but the soundness of the application is ques- 
tioDable, and it is now strictly confined to cases where the 
covenant is for payment of money, so that the damage 
may be certainly measured by interest. 

The equity for relief against penalties applies most ex- 
tensively to the case of forfeited mortgages, where a loan 
has been secured by the transfer of property, with a con- 



24 ADAMS'S DOCTRINE OF EQUITY. 



y. 



dition to redeem on a specified day, and the right of 
redemption has been forfeited at law by non-payment at 
the appointed time. 

The equity in these cases is, that the real transaction 
is a loan on security, and the forfeiture by non-payment 
is a mere penalty, which may be relieved against on sub- 
sequent satisfaction of the debt. If it be not in fact a 
loan, but a hond fide sale, with power to repurchase, there 
is no equity to interpose. A clause of redemption, how- 
ever, is prima facie evidence that a loan was intended ; 
and if that fact be established, no contemporaneous stipu- 
lation can clog the right of redemption, or entitle the 
creditor to more than his principal, interest and costs. 
A partial power to give relief in cases of *mort- 
'- ^ gage has been also conferred, by 7 Geo. 2, c. 
20, on courts of common law. 

The right of the mortgagor to redeem is termed his 
"Equity of Redemption," and is treated in equity as a 
continuance of his estate, subject to the mortgagee's 
pledge for repayment. And therefore, whilst he is left 
in possession by the mortgagee, he is looked upon as 
holding in respect of his ownership, and is not accounta- 
ble for his receipts. 

The legal ownership of the mortgagee is e converso 
treated as a mere pledge for repayment. He may enter 
into possession if he think fit ; but, if he does so, is ac- 
countable for all which he receives, or, without wilful 
default, might have received ; and if he has taken posses- 
sion when no interest was in arrear, or has continued in 
possession after both principal and interest were dis- 
charged, he is liable for interest. 

The remedy of the mortgagee by taking possession is 
practically very inconvenient, yet if the forfeiture by non- 



INTRODUCTION. 25 

payment had been taken away, and not replaced by any 
substitute, it would have been the only one attainable 
under his security. To remedy this objection, he is 
allowed, after forfeiture, to file a bill praying foreclosure 
of the equity to redeem. A new day for payment is then 
fixed by decree ; and if default be made, the mortgagor's 
right is destroyed. The right, however, is merely to fore- 
close the equity, and does not extend to warrant a sale. 

In addition to regular or perfected mortgages, which 
convey the legal estate to the mortgagee, and specify a 
day of forfeiture at law, there are other securities of an 
analogous character, but defective in one or both of these 
respects. These imperfect securities are seven in number, 
viz., 1. Mortgages of a trust, or equity of redemption, 
and equitable mortgages by imperfect conveyance or by 
contract to convey. In these mortgages the legal owner- 
ship is not transferred, and the mortgagee therefore cannot 
obtain possession at law, but is entitled in equity to a re- 
ceiver of the rents ; 2. Equitable mortgages by deposit 
of title deeds, unaccompanied by a written contract. 
Under these mortgages there is the same right to a re- 
ceiver as in the preceding class ; and there is a doubt 
whether, in addition to the remedy by foreclosure, the 
mortgagee has not an alternative remedy by sale of the 
estate ; 3. Welsh mortgages, in which there is no specified 
day of payment, but the contract is for payment out of 
the *rents : in this case the mortgagee's remedy p^ , ..-. 
is confined to perception of rents, and he has 
no right to foreclosure or sale ; 4. Trust deeds in the 
nature of mortgage, which are mere conveyances to the 
creditor on trust to sell and to retain his debt out of the 
proceeds ; 5. The equitable lien of a vendor or purchaser 
of real estate, where the one has conveyed before pay- 



26 ADAMS's DOCTRINE OF EQUITY. 

ment, or the other has paid before conveyance. In either 
of these cases the payment or return, as the case may be, 
of the purchase-money, is secured in equity by an im- 
plied charge on the land; 6. Equitable fieri facias and 
elegit, where a judgment is made available against trusts 
and equities, either by injunction against setting up an 
outstanding estate in bar of execution at law, by appoint- 
ment of a receiver of the accruing profits, or by permit- 
ing the judgment creditor to redeem ; and, 7. Judgment 
charges under 1 & 2 Vict. c. 110, ss. 13, 14, by which a 
judgment is made a charge in equity, on the debtor's in- 
terest in real estate and in stock or shares enforceable in 
like manner with a charge by contract. 

In immediate connection with the subjects just con- 
sidered of trust, contract and mortgage, we have to con- 
sider the doctrines of equitable conversion and of priority 
among conflicting equities : doctrines which, though ap- 
plicable to all subjects of equitable jurisdiction, are more 
especially important in regard to these. 

The doctrine of equitable conversion is embodied in 
the maxim, that " what ought to be done, is considered 
in equity as done ;" and its meaning is, that whenever 
the holder of property is subject to an equity in respect 
of it, the Court will, as between the parties to the equity, 
treat the subject-matter as if the equity had been worked 
out, and as impressed with the character which it would 
then have borne. The simplest operation of this maxim 
is found in the rule already noticed, that trusts and equi- 
ties of redemption are treated as estates ; but its effect 
is most obvious in the constructive change of property 
from real to personal estate, and vice versa, so as to in- 
troduce new laws of devolution and transfer. If, for ex- 
ample, an imperative trust is created, either for employ- 



INTRODUCTION. 27 

ing money in the purchase of land, or for selling land and 
turning it into money, the money or land, of which a 
conversion is directed, will be dealt with in equity during 
the continuance of the trust, and for objects within the 
scope of the trust, as if the purchase or sale had been 
actually made. In like manner, if a binding contract be 
made for *the sale of land, enforceable in equity, p^ , ...-• 
such contract, though in fact unexecuted, is con- 
sidered as performed, so that the land becomes in equity 
the property of the vendee, and the purchase-money that 
of the vendor. 

The doctrine of conversion, by changing the character 
of trusts and contracts, and altering them from mere 
rights of action into actual, though imperfect titles in 
equity, gives rise to questions between them and the 
legal title, and also to questions between conflicting equi- 
ties, where several have been created in reference to the 
same thing. 

The rule of priority in regard to transfers and charges 
of the legal estate is, that the order of date prevails, 
subject, however, to modifications by statute in respect 
to voluntary or fraudulent grants ; and the same rule, 
subject to the same modifications, governs, in the absence 
of a special equity, transfers and charges of the equitable 
interest. But if legal and equitable titles conflict, or if, 
in the absence of a legal title, there is a perfect equitable 
title by conveyance on the one hand, and an imperfect 
one by contract on the other, a new principle is introduced, 
and priority is given to the legal title, or if there is no 
legal title, to the perfect equitable one. This doctrine is 
embodied in the maxim, that '"' between equal equities the 
law will prevail." > 

In order that this maxim may operate, it is essential 



28 ADAMS's DOCTRINE OF EQUITY. 

that the equities be equal. If they are unequal, the 
superior equity will prevail. And such superiority may 
be acquired under any of the three following rules : 1. 
The equity under a trust or a contract in rem is superior 
to that under a voluntary gift, or under a lien by judg- 
ment at law ; 2. The equity of a party who has been 
misled, is superior to his who has wilfully misled him; 3, 
A party taking with notice of an equity, takes subject to 
that equity. 

If no superior equity exists, the common course of law 
is not interfered with. The equities are equal, and the 
law or the analogy of law will prevail. If there be a 
legal right in either party, the Court of Chancery remains 
neutral, and the matter is left to be decided at law with- 
out either relief or discovery in equity. If there be no 
legal right it cannot be neutral ; and, therefore, acts on 
the analogy of law, and gives priority to that title which 
most nearly approximates to a legal one, viz., to an exe- 
cuted and perfect title in equity, rather than to one which 
is executory and imperfect. 

P^ ,. -, *The maxim of non-interference between equal 
equities is the foundation of the doctrine of tack- 
ing in equity. The cases to which this doctrine applies 
are those where several encumbrances have been created 
on an estate, and two or more of them, not immediately 
successive to each other, have become vested in a single 
claimant. Under these circumstances the question arises, 
whether an intermediate claimant may redeem one of such 
encumbrances, and postpone the other to his own charge, 
or whether the party holding the two encumbrances may 
tack or consolidate them, so that the earlier in date can- 
not be separately redeemed. The doctrine on this point 
is, that if the double encumbrancer is clothed with a legal 



INTRODUCTION. 29 

or superior equitable right, he may, as against the mesne 
claimants, tack to it a claim for any further amount due 
to him in the same character, which was advanced ex- 
pressly or presumptively on the credit of the estate with- 
out notice of the mesne equity. A similar equity accrues 
where two mortgages of different estates are made to one 
person, or, being originally made to two, become vested 
in one, whilst the equities of redemption remain united 
in a single hand. In such a case neither the mortgagor, 
nor any person making title under him, can, after forfeit- 
ure, redeem one without redeeming both. 

In addition to the equity for performance of a trust or 
contract where the original transaction and its evidence 
are unimpeached and clear, there is an equity for re-exe- 
cution, correction, or rescission, where the instrument 
evidencing a transaction is destroyed or lost; where, 
through mistake or accident it has been incorrectly 
framed ; or where the transaction is vitiated by illegality 
or fraud, or as having been carried on in ignorance or mis- 
take of facts material to its operation. These equities, 
like the equity for performance in specie, are incapable 
of enforcement by the courts of law, and fall therefore 
within the province of the Court of Chancery. 

The equity for re-execution and other similar relief 
arises, not only on wilful destruction or concealment, but 
also on an accidental destruction or loss, where the miss- 
ing instrument is such that its non-production would per- 
petuate a defect of title, or would preclude the plaintiff 
from recovering at law. Such for instance is a convey- 
ance or bond, which under the old practice must have 
been pleaded with profert at law, and a negotiable n^.,-! 
security, which must be produced *at law before ver- 
dict, because the court cannot otherwise indemnify the 
defendant against its possible reappearance. 



30 ADAMS's DOCTRINE OF EQUITY. 

The equity to correct written instruments which have 
been erroneously framed, is appropriate to chancery 
alone ; for a court of law cannot compel an alteration in 
the instrument, and its entire avoidance would be a nullifi- 
cation, and not an affirmance, of what was meant. It 
arises, firstly, where an instrument has been executed in 
order to the performance of a pre-existing trust, but is 
framed in a manner inconsistent with its terms ; secondly, 
when an instrument purports to carry into effect an agree- 
ment which it recites, and exceeds or falls short of that 
agreement; and, thirdly, where an instrument is admit- 
ted or proved to have been made in pursuance of a prior 
agreement, by the terms of which both parties meant to 
abide, but with which it is in fact inconsistent ; or where it 
is admitted or proved that an instrument, intended by both 
parties to be prepared in one form, has by an undesigned 
insertion or omission been prepared and executed in 
another. It is in conformity with this principle that 
bonds given for payment of a joint and several debt, but 
drawn up as merely joint, have been reformed in equity, 
and made joint and several, in conformity with the origi- 
nal liability ; and that mortgages by husband and wife of 
the wife's estate, which have limited the equity of re- 
demption to the husband, have been reformed by restor- 
ing it to the wife. 

The equity for rescission and cancellation arises where 
a transaction is vitiated by illegality or fraud, or by reason 
of its having been carried on in ignorance or mistake of 
facts material to its operation. And it is exercised for a 
double purpose ; first, for cancelling executory contracts 
where such contracts are invalid at law, but their invalidity 
is not apparent on the instrument itself, so that the defence 
may be nullified by delaying to sue until the evidence is 



INTRODUCTION. 31 

lost; and secondly, for setting aside executed convey- 
ances or (*ther impeachable transactions, where it is neces- 
sary to place the parties in statu quo. An executed con- 
veyance, however, cannot generally be set aside on the 
ground of its illegal or immoral character, for it is a maxim 
that ^' in pari delicto melior est conditio defendentis." But 
it is otherwise where the contract remains executory, for 
its illegality would be admissible as a defence at law, and 
the decree for cancelling is only an equitable mode of 
rendering that defence effectual. 

*The ordinary instances of fraud are the procuring r^y-\ 
contracts to be made, or acts to be done, by means 
of wilful misrepresentation, either express or implied, and 
the procuring them to be made or done by persons under 
duress or incapacity. The same principle which vitiates 
a contract with an incapacitated person, is extended in 
equity to avoid benefits obtained by trustees from their 
cestuis que trustent, or by other persons sustaining a fidu- 
ciary character from those in regard to whom that char- 
acter exists. And there is a similar equity, though per- 
haps less obviously founded on principle, for setting aside 
bargains made with expectant heirs and reversioners with- 
out the knowledge of the parent or other ancestor, partly 
as having been made under the pressure of necessity, but 
chiefly as being a fraud on the parent or ancestor, who is 
misled in disposing of his estate. 

The ignorance or mistake which will authorize relief in 
equity must be an ignorance or mistake of material facts ; 
as, for example, where an instrument is executed, not by 
way of releasing or compromising a particular right, but 
in ignorance or mistake of the facts which originate the 
right. If the facts are known, but the law is mistaken, 
the same rule applies in equity as at law, viz., that a mere 



32 ADAMS's DOCTRINE OF EQUITY. 

mistake of law, where there is no fraud or trust, is imma- 
terial. In addition to the jurisdiction for setting aside 
contracts on the ground of mistake by the parties, there 
is a jurisdiction to- set aside awards for miscarriage in the 
arbitrators, where the fact of such miscarriage does not 
appear on the award. 

The equity for rescission which has been just stated, 
may be effectuated, not only by cancellation of an instru- 
ment, or by re-conveyance of property which has been 
unduly obtained, but also by injunction against suing at 
law on a vitiated contract, or against taking other steps 
to complete an incipient wrong. The right, however, to 
relief by injunction, is not confined to this equity, but 
extends to all cases where civil proceedings have been 
commenced before the ordinary tribunals in respect of a 
dispute which involves an equitable element, or where any 
act not criminal is commenced or threatened, by which 
any equity would be infringed. The restraint may be 
either imposed by a final decree, forbidding the act inper- 
petiium on establishment of the adverse right, or by inter- 
locutory writ, forbidding it pro tempore whilst the right is 
in litigation. 

The injunction against proceeding in another Court, 
where equitable elements are involved in the dispute, is 
p^,..-| commonly issued *in regard to actions at law, and 
is obtainable as of course within a short period 
after the commencement of a suit, so as to restrain the pro- 
ceedings at law until an answer is filed. If the answer 
show the existence of an equitable question, such ques- 
tion will be preserved intact until the hearing of the 
cause, by continuing the injunction, either absolutely or 
in a modified form, until that time. If at the hearing 
the decision is with the plaintiff in equity, the injunction 



INTRODUCTION. 33 

may be made perpetual. The same jurisdiction exists in 
regard to proceedings in the Ecclesiastical and Admiralty 
Courts, and even to proceedings in the courts of foreign 
and independent countries, when the parties are person- 
ally within the jurisdiction of the Court of Chancery. 
But it does not extend to proceedings in courts which are 
of equal competency to adjudicate on the equity. 

The relief by injunction against proceedings at law is 
also applied under a distinct equity on bills of peace and 
bills of interpleader. A bill of peace is a bill filed for 
securing an established legal title against the vexatious 
recurrence of litigation, whether by a numerous class of 
claimants insisting on the same right, or by an individual 
reiterating an unsuccessful claim ; and its equity is, that 
if the right be established at law, it is entitled to adequate 
protection. A bill of interpleader i^ a bill filed for the 
protection of a person from whom several persons claim 
legally or equitably the same thing, debt or duty, but 
who has not incurred an independent liability to any of 
them, and who does not himself claim an interest in the 
matter. Its equity is, that the conflicting claimants 
should litigate the matter amongst themselves, without 
involving the stakeholder in their dispute. 

The injunction against an act commenced or threatened, 
by which an equity may be infringed, is often used as an 
auxiliary process in respect of ordinary equities. But 
there is one class of cases in which the necessity for in- 
junctive relief constitutes 'per se an independent equity, 
viz., that of torts, as a class of civil wrongs, distinct from 
cases of trust, of contracts, and of fraud. The principle 
of injunctive relief against a tort is, that wherever dam- 
age is caused or threatened to property, admitted or 

legally adjudged to be the plaintiff's, by an act of the 
3 



^ 



34 ADAMS's DOCTRINE OF EQUITY. 

defendant, admitted or legally adjudged to be a civil 
wrong, and such damage is not adequately remediable at 
law, the .inadequacy of the remedy at law is a sufficient 
equity and will warrant an injunction against the com- 
raty-] mission or continuance of the wrong. *And though 
damages cannot be given in equity for the plain- 
tiff's loss, yet if the defendant has made a profit, he will 
be decreed to account. The equity is not confined in 
principle to any particular acts ; but those in respect of 
which it is most commonly enforced are waste, destruc- 
tive trespass, nuisance, infringement of patent right, and 
infringement of copyright. 

The equities under the second head of our division, 
viz., where the courts of ordinary jurisdiction cannot ad- 
minister a right, are those for investigation of accounts ; 
for severance of co-tenancies, and other analogous relief; 
for winding up partnerships and administering testamen- 
tary assets; for adjusting liabilities under a common 
charge ; and for protection of the persons and estates of 
infants, idiots, and lunatics. 

The jurisdiction over account is exercised in a two-fold 
form ; first, for compelling an account from an agent or 
steward, or any person whose duty it is, by reason of his 
character, position, or office, to render an account, and 
who has failed to do so ; and, secondly, for investigating 
mutual accounts where items exist on both sides, not 
constituting mere matters of set-off, but requiring, in 
order to ascertain the balance, a more complicated ac- 
count than can practically be taken at law. ^ 

The equity for severance of co-tenancy and other analo- 
gous relief, originates in the fact that the co-tenants have 
a rightful unity of possession, and that its severance can- 
not be adequately affected at law. It is most frequently 



INTRODUCTION. 35 

applied, in effecting partition between co-parceners, joint- 
tenants, or tenants in common. But its principle extends 
to suits by a widow against the heir for assignment of 
dower, and to suits by a tithe-owner against the tithe- 
payer for relief against subtraction or non-payment of 
tithes ; for in the one case the heir is rightfully in pos- 
session of the entirety, and ought himself to make the 
assignment ; in the other, the tithe-payer is rightfully in 
possession of the produce, and ought himself to set apart 
the tithe. There is also an equity for ascertainment of 
boundary between the estates of independent proprietors 
where the confusion has arisen by the defendant's fault, 
and for compelling payment of rents where by confusion 
of boundaries or other cause, the remedy by distress is 
gone without default in the plaintiff. 

The equity for winding up the business of a partner- 
ship originates in the peculiar character of that relation- 
ship, as involving not merely *a community of p^,. -• 
interest, but the employment of a common stock 
in some common undertaking with a view to a common 
profit. In order to ascertain this common profit, and the 
share of each individual partner therein, an account must 
be taken of the business, the assets, and the liabilities. 
The incapacity of the Courts of law to take this account, 
confers a jurisdiction on the Court of Chancery, so that 
if the partnership has been already dissolved, or if there 
be misconduct or incompetency in either partner sufficient 
to ^Varrant its dissolution, a bill will lie to have the assets 
converted into money, the debts discharged out of their 
produce, and the surplus distributed among the partners, 
or the deficiency made good by contribution among them, 
and a receiver appointed in the meantime to manage the 
business. If, after a partnership has been dissolved by 



86 ADAMS's DOCTRINE OF EQUITY. 

death or bankruptcy, the assets are used by the surviving 
or solvent partner for the purposes of profit, he is in the 
same position as any other fiduciary holder of property, 
using it for his own benefit, and is liable to account to 
the executors or assignees for the profit which he has 
made. There is also a special equity in the case of mines 
and collieries, to deal with them on the footing of a quasi 
partnership, so that where the co-owner cannot agree on 
the management, a receiver may be appointed over the 
whole. 

The equity for administering the assets of a testator or 
intestate, does not authorize the Court of Chancery to try 
the validity of a will. The jurisdiction for that purpose 
in regard to wills of personal estate belong to the Eccle- 
siastical Courts, and in regard to wills of real estate to 
the Courts of common law. If, however, under a will of 
real estate, there is a trust to perform or assets to admin- 
ister, so that the will is drawn within the cognisance of 
equity, there is an incidental jurisdiction to declare it 
established, after first directing an issue {devisavit vel non) 
to try its validity at law. 

Assuming the title of representative to be established, 
whether that of an executor or devisee, or that of an ad- 
ministrator or heir there is an equity for administering 
the assets of a testator or intestate originating in the in- 
efficiency of the ordinary tribunals. In the exercise of 
this equity for administration of assets, all such assets as 
would be recognised at law are termed legal assets, and 
are administered in conformity with legal rules, by giving 
priority to debts in order of degree. There are other 
assets, recognised in equity alone, which are termed 
equitable assets, and are distributed *among the 
'- -I CTQdiiors, pari passu, without regard to the quality 



INTRODUCTION. 37 

of their debts. The principal assets of this class are real 
estates devised for or charged with payment of debts, and 
equities of redemption on forfeited mortgages. 

The manner of. administration in equity is on a bill, 
filed either by creditors or by legatees, praying to have 
the accounts taken and the property administered ; or if 
no creditor or legatee is willing to sue, then by the exe- 
cutor himself, who can only obtain complete exoneration 
by having his accounts passed in chancery. The per- 
sonalty is secured by payment into court; a receiver of 
the real estate and of the outstanding personalty is ap- 
pointed, if the circumstances require it ; and a decree is 
made for taking the accounts ; all actions by creditors are 
stayed; advertisements are issued for claimants to come 
in; and the funds are ultimately distributed by the 
court, so as to protect the representative from subsequent 
liability. 

The equity for adjusting liabilities under a common 
charge arises where a charge or claim, affecting several 
persons, is or may be enforced in a manner, not unjust in 
the person enforcing it, but unjust or irregular, as be- 
tween the parties liable. And it is exercised under the 
three forms of contribution, exoneration, and marshalling. 
The equities of contribution and exoneration arise where 
several persons are bound by a common charge, not aris- 
ing ex delicto, and their order of liability has been acci- 
dentally deranged. If the liability be joint, he who has 
paid more than his share is entitled to contribution from 
the rest. If some are liable in priority to the rest, the 
parties secondarily liable, if compelled to discharge the 
claim, are entitled to exoneration. Both these equities 
are exemplified in the case of suretyship ; the one by the 
rights of sureties as between themselves ; the other by 



38 Adams's docteine of equity. 

their rights as against the principal. Their enforcement 
in equity, instead of at law, is advantageous, because the 
machinery of equity is in general best fitted for such en- 
forcement ; and more especially in questions of contribu- 
tion, because all parties can be united in a single suit, 
and losses caused by the insolvency of any can be distri- 
buted ratably among the rest. The equity of marshalling 
arises where the owner of property subject to a charge, 
has subjected it (together with another estate or fund) 
to a paramount charge, and the property thus doubly 
charged is inadequate to satisfy both claims. Under 
these circumstances, there is an equity against the debtor 
|-5j., .-1 that the ^accidental resort of the paramount cred- 
itor to the doubly charged estate or fund, and the 
consequent exhaustion of that security, shall not enable 
him to get back the second property discharged of both 
debts. If, therefore, the paramount creditor resort to 
the doubly charged estate, the puisne creditor will be sub- 
stituted to his right, and will be satisfied out of that 
other fund to the extent to which his own has been ex- 
hausted. 

The equities of contribution, exoneration, and marshal- 
ling, are applied, as already noticed, in the administration 
of assets, to rectify disorders which may incidentally 
occur ; and the two former are applied where debts or 
legacies are charged on several kinds of assets, either 
pari passu or successively ; the latter, where they are 
charged, some on several kinds of assets, and some on one 
kind only, and the doubly charged assets have been 
applied in discharge of the double secured claims. 

The last equity which remains for notice, is the equity 
for administering the estates and protecting the persons 
of infants, idiots, and lunatics. 



INTRODUCTION. 39 

.The protection. of an infant's person and estate is to 
some extent provided for by the right of guardianship, and 
by the -writs of habeas corpus and of account at law. But 
this protection is of very limited extent, and is far from 
adequate to secure a proper education of the infant and a 
prudent management of his estate. For these purposes 
there is a prerogative in the Crown as parens patrice, ex- 
ercised by the Court of Chancery, for protection of any 
infant residing temporarily or permanently within its 
jurisdiction. The jurisdiction is called into operation by 
filing a bill, which constitutes the infant a ward of Court; 
and such wardship is attended by three principal inci- 
dents. Firstly, the infant must be educated under the 
Court's superintendence, which is exercised either by ap- 
pointment of a guardian where there is none, by a general 
control of the legal guardian, when there is one within 
the jurisdiction, or by displacement of the legal guardian, 
if he has voluntarily relinquished his right, or has forfeited 
it by misconduct tending to the infant's corruption. Sec- 
ondly, the estate of the infant must be managed and 
applied under the like superintendence, to be exercised 
either by appointment of a receiver when there are no 
trustees, or by a general control of the trustees where they 
already exist, and do not misconduct themselves. And 
in the exercise of such superintendence, an adequate part 
of the *income will be allowed for maintenance and p^, ..-i 
education, provided such income belong absolutely 
to the infant, and the allowance be for his benefit ; but 
there is no power to dispose of the estate itself, except 
in the special cases of partition and election, and of the 
devolution on an infant of a mortgaged estate, and in the 
cases where it is expressly conferred by statute. Thirdly, 
the marriage of the infant must be with the sanction of 



40 ADAMS's DOCTRINE OF EQUITY. 

the Court. And such sanction will only be given on 
evidence that the marriage is suitable, and, if the infant 
be a female, on a proper settlement being made. 

The jurisdiction- to protect persons under mental inca- 
pacity, is of an analogous origin with that for protection 
of infants ; and extends in like manner to all persons, 
whether subjects of the Crown or not, whose persons or 
property are within the local limits of the jurisdiction. It 
differs, however, from the jurisdiction in infancy, because 
the Crown, in the event of idiocy or lunacy, has not a 
mere authority to protect, but an actual interest in the 
land of the idiot or lunatic, determinable on his recovery 
or death. If the owner is an idiot, the profits are applied 
as a branch of the revenue, subject merely to his requisite 
maintenance : if he is a lunatic, they are applied on trust 
for his support, and the surplus is to be accounted for to 
himself or his representatives. The effect of the interest 
thus vested in the Crown is twofold ; first, that a special 
grant is required for its administration, and consequently, 
that such administration does not belong to the Court of 
Chancery, but is conferred on the Lord Chancellor person- 
ally by warrant from the Crown ; and secondly, that the 
mere lunacy does not originate the jurisdiction, but it must 
be inquired of by a jury under a commission from the 
Great Seal, and found of record. 

When the fact of lunacy has been duly established, the 
custody, of the estate and person of the lunatic is granted 
by the Chancellor to committees, with a proper allowance 
for maintenance. On the subsequent recovery of the 
lunatic, the commission may be superseded; and on his 
death, the power of administration is at an end, and the 
property will be delivered up to his representatives. 

In addition to the prerogative jurisdiction in equity. 



INTRODUCTION. 41 

there are other jurisdictions belonging to the Court of 
Chancery. It is a Court of State, where all public acts 
of government are sealed and enrolled. It is an officina 
justiiicB for the issuing of writs under the Great Seal, e.g., 
writs of certiorari, of prohibition, and of habeas corpus, 
*as well as the original writ which has been already p^^, ...-i 
noticed, and the writs of subpoena and injunction, 
which are appropriated to the equitable jurisdiction of the 
Court. It has a common law jurisdiction in what is called 
the Petty Bag Office, the chief objects of which are, to 
hold plea on scire facias to repeal letters-patent, on peti- 
tions of right, monstrans de droit, traverses of office, and 
the like, and in personal actions where any officer or 
minister of the Court is a party.^ It has many special 
jurisdictions by statute, which are generally directed to 
be exercised by summary orders on petition, instead of 
the more regular procedure by suit ; e. g., for relieving 
summarily against breaches of charitable trusts, or regu- 
lating their administration, for effectuating conveyances 
and transfers by incapacitated trustees or mortgagees, 
for managing property belonging to infants, /(??w^s covert, 
lunatics, and persons of unsound mind, and for a variety 
of miscellaneous purposes, depending in each instance 
for their character and extent on the language of the 
statute in which they originate.^ It has a very imports 
ant jurisdiction, also of statutory origin, under the law 
of bankruptcy, for administering the property of an insol- 
vent trader in his lifetime, in order to the satisfaction of 
his creditors pari passu, and for discharging the debtor, 
after full surrender of his property and conformity with 
the requisitions of the law, from further liability for his 

1 4 Inst. 79 ; Rex v. Hare, 1 Str. 150; 3 Steph. PI. 408-410; 1 Madd. 
C. P. book i. 2 2 Dan. C. P. Ch. 40. 



42 ADAMS's DOCTRINE OF EQUITY. 

antecedent debts.^ And lastly, it has a jurisdiction over 
the solicitors of the Court for the summary enforcement 
of their professional duty, including the delivery of papers 
and payment of money in their hands, on satisfaction of 
their claims for costs.^ The consideration, however, of 
these additional jurisdictions is not within the scope of 
the present Treatise, which is confined to the prerogative, 
or proper equitable jurisdiction. 

We have hitherto been considering the jurisdiction in 
equity. But an inquiry still remains as to the forms of 
pleading and procedure in accordance with which that 
r-i^y -, jurisdiction is exercised. It *is obvious that in 
every Court some forms must exist; of which 
the character will be determined by the nature of the 
jurisdiction, and the objects which it is principally exer- 
cised to attain. In accordance with this view, the forms 
of pleading and procedure in equity are directed to elicit- 

v/ ing discovery on oath from the defendant, and to placing 
on the record of the Court a full and clear detail of facts 
on which the equities may be adjusted by a decree. 

The suit is commenced by filing a bill of complaint, or 
if the claim made is on behalf of the Crown, an informa- 
tion by the Attorney-General. The bill or information 

/ consists of five principal parts, viz. : the statement, the 
charges, the interrogatories, the prayer for relief, and the 
prayer of process. The statement is a narrative of the 
plaintiff's case ; and it is essential that it state a consistent 
case on behalf of all the plaintiffs, and that it state such 
case in direct terms, with reasonable certainty, and with- 
out scandal or impertinence. The charges are generally 

1 6 Geo. 4, c. 16, and 1 & 2 Win. 4, c. 56 ; 5 dc 6 Vict. c. 122 ; 10 & 11 
Viet. c. 102. 

2 6 & 7 Vict. c. 73 1 Smith's Ch. Pr. c. 3; Beames on Costs, pi. 2 ; 2 
Law Review 317 ; 3 Id. 155, 319. 



INTRODUCTION. 43 

used for collateral objects ; such, for example, as meeting 
an anticipated defence by matter in avoidance, or by in- 
quiries to sift the truth; giving notice of evidence which 
might otherwise operate as a surprise; and obtaining dis- 
covery as to matter of detail, which could not be conve- 
niently introduced in the statement. The interrogatories 
are an examination of the defendant on oath. The prayer 
for relief, or statement of the relief required, must stsate 
with reasonable clearness what relief is asked, and must 
not combine distinct claims against the same defendant, 
or unite in the same suit, several defendants, some of 
whom are unconnected with a great portion of the case. 
If the prayer is objectionable on either of these two latter 
grounds, the bill is termed multifarious. The prayer of 
process asks that a writ of subpoena may issue, directed 
to the parties named as defendants, and requiring them 
to appear and answer the bill, and to abide by the decree 
when made. In bills for discovery or to perpetuate tes- 
timony, the words "to abide by the decree" are omitted, 
as well as the prayer for relief. If any other writ be 
required, such as an injunction, a ne exeat, or a certiorari, 
it should be asked for in the prayer of process, either 
singly, or, if the defendant be required to appear, together 
with the writ of subpoena. 

The persons against whom process is asked are the de- 
fendants to *the bill, and should consist of all per- p^, -, 
sons interested in the suit, who are not already 
joined as plaintiffs. 

With respect to the nature of the interest which re- 
quires a person to be joined in a suit, there is of course 
no difficulty as to persons against whom relief is expressly 
asked; but with respect to those who are incidentally con- 
nected with the relief asked against others, the line of 




44 ADAMS's DOCTRINE OF EQUITY. 

demarcation is less easy to draw. The interests, how- 
ever, which require such joinder seem generally referable 
to one of the three following heads : first, interests in the 
subject-matter, which the decree may effect, and for the 
protection of which the owners are joined; secondly, con- 
current claims with the plaintiff, which, if not bound by 
the decree, may be afterwards litigated; and thirdly, 
liability to exonerate the defendant, or to contribute with 
him to the plaintiff's claim. In cases where the persons 
thus interested are too indefinite or numerous to be indi- 
vidually joined, one or more members of a class may sue 
or be sued on behalf of the whole, provided the interest 
of every absent member in the claim made or resisted, is 
identical with that of the members who are personally 
before the Court. 

After the bill has been filed, it is next requisite that 
/ the subpoena should be served, that the defendant should 
V enter his appearance, and that after appearing he should 
put in his defence. If he be contumacious and refuse to 
do so, his disobedience may be punished as a contempt; 
and the plaintiff is enabled, on compliance with certain 
rules, to enter an appearance for him, and, on continuance 
of his default, either to take the bill pro confesso, or to 
put in a formal defence in his name and proceed to sup- 
port the bill by evidence. 

Assuming that the defendant is not contumacious, his 
defence. may be made in four forms, those of disclaimer, 
^/demurrer, plea, or answer. And any two or more of these 
forms may be combined, provided they be applied to dif- 
ferent parts of the bill and their respective application 
be distinctly pointed out. 

A disclaimer denies that the defendant has any interest 



INTRODUCTION. 46 

in the matter, and asks that he may be dismissed from 
the suit. 

A demurrer submits that on the plaintiff's own show- 
ing his claim is bad. The decision on a demurrer is ob- 
tained by setting it down for argument. If the demurrer 
is allowed on argument the suit is *at an end, un- p^, .-, 
less it be confined to a part of the bill, or the 
court give permission for the plaintiff to amend. If it is 
overruled, the defendant must make a fresh defence by 
answer, unless he obtain permission to avail himself of a 
plea. 

A plea avers some one matter of avoidance, or denies 
some one allegation in the bill, and rests the defence on 
that issue. The former class of pleas are termed affirma- 
tive, the latter negative, pleas. There is also a third 
description of plea, which may be termed the anomalous 
plea, and which is applicable when the plaintiff has an- 
ticipated a legitimate plea, and has charged an equity in 
avoidance of it ; e. g., when having stated a release of his 
original equity, he charges that such release was obtained 
by fraud. In this case, the release or other original de- 
fence may be pleaded with averments, denying the fraud 
or other equity charged in avoidance ; and the term ano- 
malous is used, because it does not tender an independent 
issue, but sets up anew the impeached defence with aver- 
ments in denial of the impeaching equity. 

The adoption of the negative and anomalous plea has 
introduced a peculiar form of pleading, called a plea sup- 
ported by an answer. It often happens, where a negative 
plea is used, that the bill contains allegations in evidence 
of the disputed statement. In this case the plea of its 
untruth will not protect from discovery of matters which 
would prove it truej and, therefore, these allegations 



46 ADAM"S'S DOCTRINE OF EQUITY. 

must be excepted from the plea, and must be met by an 
answer in support. In all instances of the anomalous 
plea, the same necessity occurs, for such a plea, though 
good as to the original equity, is clearly ineffectual as to 
the equity in avoidance ; and that equity, therefore, must 
not only be denied by averments in the plea, so as to 
render the defence complete, but must in respect of the 
plaintiff's right of discovery, be the subject of a full 
answer in support. 

The rules of pleading applicable to a plea are, that it 
must raise a single issue, and that its averments must 
have the same certainty as in a plea at law. It is also 
generally requisite to the validity of a plea that it be 
verified by the defendant's oath. 

The decision on a plea is obtained in two ways : first, 
by setting it down for argument in order to try its vali- 
dity ; and, secondly, by filing a replication and bringing 
the cause to a hearing on the issue tendered, in order to 
determine its truth. If the plea is overruled on argu- 
ment, the defendant must answer ; if allowed, its validity 
P^, ..-, is *established, but the plaintiff may still file a 
replication, and go to a hearing on the question of 
its truth. If on the hearing it is sustained by the evi- 
dence, there. will be a decree for the defendant; if dis- 
proved, he can set up no further defence, but a decree 
will be made against him. 

The defence by answer is the most usual, and generally, 
the most advisable course. It puts on the record the 
whole case of the defendant, and enables him to use all 
or any of his grounds of defence, subject, only to the ne- 
cessity of verifying them on oath ; and it unites with this 
statement of the defence a discovery on oath as to the 
matters alleged in the bill. Its averments, so far as it is 



INTRODUCTION. 47 

a narrative of the defendant's case, are governed by the 
same rules as those of a bill, viz., they must state a con- 
sistent case, and must state it with reasonable certainty, 
and without scandal or impertinence. In so far as it con- 
sists of discovery, it is regulated by the principles which 
have been already noticed under that head of jurisdiction. 

After the answer is put in, the next question which 
arises regards its sufficiency, viz., whether the defendant 
has given all due discovery. If he has not done so the 
plaintiff may except, stating the points on which the 
answer is defective, and praying that a sufficient one may 
be enforced. If the defendant does not submit to the 
exceptions, they are referred to one of the Masters for 
consideration, and if he reports in their favor, a further 
answer must be filed. If either party is dissatisfied with 
the Master's decision, he may bring the question before 
the Court by exceptions to the report ; and it will then 
be finally decided. 

The next step is the amendment of the bill. The ob- 
ject of the amendment may be either to vary or add to 
the case originally made, or to meet the defence by new 
matter. If the amendment make fresh discovery requi- 
site, the plaintiff may call for a further answer, or if the 
defendant considers it material to make a further answer, 
he may do so, though not required by the bill. The 
right of amending is not absolutely confined to the plain- 
tiff. The defendant may, under special circumstances, 
obtain a similar indulgence by getting leave to file a sup- 
plemental answer ; but as an answer is put in on oath, 
the Court, for obvious reasons, will not readily suffer 
alterations to be made. 

The final result of the pleadings is, that the original or 
ultimately ^amended bill and the answer or sue- r^, •.-i 
cessive answers of the defendant constitute the 




48 ADAMS'S DOCTRINE OF EQUITY. 

whole record. The plaintiff may then either set down 
the cause for hearing on bill and answer, admitting the 
answer to be true throughout, or if he controverts any 
part of the answer, or requires additional proof of his 
case, may file a short general form, called a replication, 
stating that he joins issue with the defendant. 

The answer of the defendant is the chief foundation of 
interlocutory orders, that is, of orders not made at the 
hearing of the cause, but obtained during its progress for 
incidental objects ; and such orders, therefore, will natu- 
rally fall under our notice at this stage of our inquiry. 

The mode of obtaining interlocutory orders is either by 
a viva voce application, called a motion ; or by a written 
one, called a petition. The statements made in the answer 
have generally a considerable influence on the application, 
and in some instances they are the only admissible evi- 
dence. Where other evidence is admitted it is brought 
forward, not by the regular examination of witnesses, but 
by the affidavits of voluntary deponents. 

Applications of this kind are made for a variety of ob- 
jects ; but those of most ordinary occurrence, and which 
alone seem material to be noticed, are six in number, viz.. 
First, production of documents, when documents are ad- 
mitted to be in the defendant's possession, and to be capa- 
ble of affording discovery to which the plaintiff is entitled. 
Secondly, payment into Court, when the defendant admits 
money to be in his hands, which he does not claim as his 
own, and in which he admits that the applicant is inter- 
ested. Thirdly, for a receiver, where no competent per- 
son is entitled to hold the property, or the person so 
entitled is in the position of a defaulting trustee ; or even 
where an adverse title is claimed, if gross fraud or immi- 
nent danger be shown. Fourthly, an injunction to restrain 



INTRODUCTION. 49 

a defendant, so long as the litigation continues, from doing 
acts productive of permanent injury, or from proceeding 
in an action at law, where an equity is alleged against his 
legal right. Fifthly, a writ of ne exeat, in the nature of 
equitable bail, to restrain a defendant from quitting the 
kingdom ; and sixthly, a preliminary reference to the 
Master, where accounts or inquiries are requisite before 
the cause can be decided, which cannot be conveniently 
taken or made by the court. 

*The next regular step after replication is that r-.^. . -. 
the parties should prove their cases by evidence. 

The general rules of evidence are the same in equity 
as at law, but the manner of taking it is different. The 
difference in this respect arises from the difference of the 
object in view. The object at law is to enable the jury 
to give their verdict. And for this pui*pose it is essential 
that the evidence be taken viva voce and publicly, so that 
conflicting testimony may be compared and sifted. In 
equity, the object is to elicit a sworn detail of facts on 
which the court may adjudge the equities, and to preserve 
it in an accurate record, for the use, if needed, of the 
appellate court. 

For this reason the evidence in equity is taken in 
writing, by examination or interrogatories previously pre- 
pared. And in order to avoid the risk of defects being 
discovered in the course of taking it, and false evidence 
procured to remedy them, it is taken secretly by an 
officer of the court, and no portion is disclosed until the 
depositions are complete, and the time arrives for publi- 
cation of the whole. 

After the depositions have been published and read, no 
further evidence is admissible without special leave, ex- 
cept evidence to discredit a witness, either by impeaching 



50 ADAMS's DOCTRINE OF EQUITY. 

his general credibility or by showing him to have sworn 
falsely in a part of his evidence, not material to the issue 
in the cause. With respect to the material parts of his 
evidence, such discretionary evidence is not admissible, 
lest under the pretence of impeaching his credibility new 
evidence should be introduced. 

The only exceptions to the system of taking evidence 
on written interrogatories and before publication are, in 
the case of documents in the custody of a public officer, 
and of documents, the authenticity of which is not im- 
peached, and which require only the proof of hand-writing 
or the evidence of an attesting witness. This evidence 
may be given by affidavit at the hearing. 

At the hearing of the cause the pleadings and evidence 
are stated, and the court either makes a final decree, or, 
if any questions are involved which the evidence does 
not satisfactorily determine, it eliminates them from the 
general statement, and provides for their determination 
by a preliminary decree. 

The causes which create a necessity for a preliminary 

decree are four in number, viz., 1. That in the course of 

the suit a dispute has arisen on a matter of law, which the 

Vj^t -1 court is unwillino; to decide ; *2. That a similar 
PlxvJ . . ° ' 

dispute has arisen on a matter of fact ; 3. That 
the equity claimed is founded on an alleged legal right, 
the decision of which the Court of Chancery declines to 
assume ; and 4. That there are matters to be investigated 
<which, although within the province of the court, are 
S^ch ^s the presiding Judge can not at the hearing effect- 
ually deal with. The machinery for obviating these im- 
pediments is that of a preliminary decree, directing, 1. A 
case for a court of law ; 2. An issue for a jury ; 3. An 
action at law, to be determined in the ordinary course ; 



INTRODUCTION. 51 

or 4. A reference to one of the Masters of the Court to 
acquire and impart to it the necessary information. 

Directions for a case, an issue, or an action, are rather 
transfers to another tribunal than steps of procedure in 
the Court itself; but a reference to the Master is an 
ordinary step in the cause, and is directed principally to 
three objects, viz., 1. To the protection of absent parties 
against the possible neglect or malfeasance of the liti- 
gants ; 2. To the more effectual working out of details, 
which the Judge sitting in Court is unable to investi- 
gate ; and 3. To the supplying defects or failures in 
evidence. 

The mode of conducting a' reference is by written state- 
ments and counter-statements, which are supported either 
by affidavits, by depositions, or by viva voce testimony. 
When the evidence is complete, the Master prepares a 
draft report, and it is the duty of any dissatisfied party 
to lay before him written objections, specifying the points 
in which he considers it erroneous. If this is not done, 
he cannot afterwards contest the correctness of the report. 

When the Master has disposed of all objections, and 
come to a conclusion on the matters referred, he settles 
and signs his report, and such report is then fikd. 

If any of the persons interested, whether actual or 
quasi parties, are dissatisfied with the report, they may 
file written exceptions, founded on the objection previ- 
ously taken, and specifying the alleged errors and the 
corrections proposed. The exceptions are then heard and 
determined by the Court. 

When the exceptions have been disposed of, and the 
report confirmed, the cause is heard on further directions, 
and the costs are generally disposed of, at the same time. 
If the nature of the case made on the report involves the 



52 ADAMS's DOCTRINE OF EQUITY. 

necessity of new inquiries, a reference is again made, 
p, .-, and further directions are again reserved, *and 
the same process is from time to time repeated 
until a final decree is made. 

The power to compel obedience to the decree, like that 
for enforcing appearance or answer, was originally confined 
to process of contempt ; and the party against whom the 
decree was made was exposed to have his person impris- 
oned and his goods sequestered as a punishment for dis- 
obedience; but if he still continued contumacious, he 
could not be forced to perform the decree. By the 
statutes of 1 Wm. 4, c. 36, and 1 & 2 Vict. c. 110, this 
inconvenience has been to some extent remedied, and the 
Court is enabled to direct an execution of instruments by 
another person in the name of the contumacious party, to 
take possession of documents in his hands which he 
refuses to deliver up, and to levy moneys out of his pro- 
perty by writ of execution. Where none of these reme- 
dies can be adopted, as where the act ordered requires 
the personal agency of the defendant, the Court is remitted 
to the process of contempt, and can only enforce its decree 
by imprisonment and sequestration. 

The next subject for consideration after the decree is 
the jurisdiction for alteration or reversal, and it should be 
observed that the jurisdiction for this purpose is not con- 
fined, as to law, to the final judgment, but extends to in- 
terlocutory proceedings in the cause. 

A decree, when made, is not perfected until enrolment ; 
and therefore, so long as it continues unenroUed, it may 
be altered on a rehearing before the same jurisdiction, 
viz., either before the Judge who originally made it, or 
before the Lord Chancellor as the head of the court. 



INTRODUCTION. 53 

After enrolment it is a conclusive decree, and can only 
be altered on appeal. 

For the purpose of such appeal there is a twofold juris- 
diction : first, in the King, whose conscience is ill admin- 
istered, and who may issue a special commission pro re 
nata to reconsider his Chancellor's decree; and, secondly, 
in the House of Lords, on petition to them as the supreme 
judicature of the realm. The former of these courses, 
however, is now disused, and the latter, which at one time 
was the subject of vehement contention, has practically 
superseded it. 

In the observations which have been hitherto made on 
procedure in equity, three things have been assumed, viz., 
first, that a decree on the plaintiff's bill will determine the 
litigation; secondly, that the bill is properly framed in the 
outset for obtaining that decree; and *thirdly, p^j.^ ..-, 
that the suit is conducted to its termination 
without interruption or defeat. It is obvious that these 
assumptions cannot always be correct, and it is therefore 
requisite, before quitting the subject, to consider the means 
for remedying the imperfections which occur. 

The first class of imperfection is where a decree on the 
plaintiff's bill will not determine the litigation. This may 
arise either from cross-relief or discovery being required 
by the defendants, or from the existence of litigation be- 
tween co-defendants. In either case the imperfection is 
remedied by one or more cross bills, filed by one or more 
of the defendants against the plaintiff and against such 
of their co-defendants, as the cross relief may affect. If 
this has not been done, and the difficulty appears at the 
hearing, the cause may be directed to stand over for the 
purpose. A cross bill may also be filed to answer the 
purpose of a plea puis darrein continuance where a new 



64 ADAMS's DOCTRINE OF EQUITY. 

defence arises after answer, but not for the purpose of in- 
directly altering the answer itself. 

The second class of imperfection is where the bill is 
framed improperly at the outset. This ought regularly to 
be rectified by amendment, but if the time for amendment 
has elapsed, it may be rectified by a supplemental bill, or 
by a bill in the nature of supplement, the character of 
which will be considered under the next head. 

Imperfections of the third class are those which origi- 
nate in an interruption or defect subsequent to the insti- 
tution of the suit, and they are rectified, according to 
circumstances, by a bill of revivor, or in the nature of 
revivor, and by bill of supplement, or in the nature of 
supplement. 

Interruptions of a suit are called abatements, and are 
cured by a bill of revivor, or in nature of revivor. They 
occur on the death of any litigating party, whose interest 
or liability does not either determine on death or survive 
to some other litigant, and on the marriage of a female 
plaintiff or co-plaintiff. If the interest or liability be 
transmitted by act of law, viz., to a personal representa- 
tive or heir, or to the husband of a married plaintiff, the 
abatement is cured by a bill of revivor, followed by an 
order on motion to revive. If the transmission is by act 
of the party, viz., to a devisee, the bill is one in nature of 
revivor, and requires a decree at the hearing to revive. 

Defects in a suit subsequent to its institution may be 
psj., ...-• caused either *in respect of parties, by the 
transfer of a former interest, or the rise of a 
new one, or in respect of issues between the existing 
parties, by the occurrence of additional facts, and they 
are cured by bill of supplement, or in the nature of a 
supplement. 



INTRODUCTION. 55 

Where an existing interest has been transferred, the 
transferee is bound by the previous proceedings, and may- 
be introduced into the suit by a supplemental bill, stating 
the transfer, and praying his substitution for the trans- 
feror. Where a new interest has arisen, as on the birth 
of a tenant in tail, he must be added by a bill in the 
nature of a supplement, restating the case against him, 
and praying an independent decree. 

With respect to the occurrence of additional facts, it 
must be observed, that if they intended to establish a 
new title in the plaintiff, they are not admissible at all, 
for he must stand or fall by the title which he had at the 
outset. If they are mere evidence of his original title, it 
seems that their introduction on the pleadings is not re- 
quired, but that the proper course is to apply for liberty 
to examine witnesses, and to have the deposition read at 
the hearing. But if the new facts are such as, leaving 
the original equity untouched, vary the form of relief, or 
create a necessity for additional relief, they are regularly 
admissible in the suit. And being subsequent to the filing 
of the bill, and therefore not properly matters of amend- 
ment, they are introduced by supplemental bill. 

If new matter occurs, or is discovered after the hearing, 
it is not properly matter of supplement, but may be intro- 
duced into the cause, if necessary, by a bill expressly 
framed for the purpose, and called a bill to execute or to 
impeach the decree. 

A bill to execute a decree is a bill assuming as its basis 
the principle of the decree, and seeking merely to carry 
it into effect. 

A bill to impeach a decree, is either a bill of review, a 
supplemental bill in the nature of review, an original biU 



56 ADAMS's DOCTRINE OF EQUITY. 

of the same nature, or an original bill on the ground of 
fraud. 

A bill of review is used to procure the reversal of an 
enrolled decree, and may be brought either on error of 
law apparent on the decree, or on the occurrence or dis- 
covery of new matter. If it proceed on the latter ground, 
the leave of the Court must be first obtained. 

A supplemental bill in the nature of review is used to 
procure the reversal of a decree before enrolment, on the 
P^j., • -j occurrence or *discovery of new matter, and must 
be filed by leave of the Court. The manner of 
procedure on such a bill is to petition for a rehearing of 
the cause, and to have it heard at the same time on the 
new matter. If the ground of complaint be error ap- 
parent, it may be corrected on a rehearing alone, and a 
supplemental bill is unnecessary. 

An original bill in the nature of review is applicable 
when the interest of a party seeking a reversal was not 
before the Court when the decree was made, and it may 
be filed without obtaining leave from the Court. 

We have now concluded our introductory inquiry into 
the jurisdiction, the pleadings, and the procedure of the 
Court of Chancery. The treatise itself will be occupied 
in filling up the outline which has been drawn, and in 
presenting a detailed examination of the doctrines which 
have been already stated in their general effect. 



BOOK I. 

OF THE JURISDICTION OF THE COURTS OF EQUITY AS RE- 
GARDS THEIR POWER OF ENFORCING DISCOVERY. 



CHAPTER I. 

OF DISCOVERY. 

The jurisdiction of the Courts of equity for the enforce- 
ment of civil rights, as distinguished from the jurisdiction, 
of the Courts of common law, derives much of its utility 
from the power of the Great Seal to compel the defendant 
in a suit to discover and set forth upon oath every fact 
and circumstance within his knowledge, information, or 
belief, material to the plain tiif's case. 

This right to enforce Discovery^ as it is called, does not 
exist in the Courts of common law.^ In those Courts the 
plaintiff must make out his case by the evidence of wit- 
nesses, or the admissions of the defendant. By this right, 
more effectual means of ascertaining the truth are afforded 
to plaintiffs in equity than in the Courts of *com- ri^ey\ 
mon law; whilst the rights of the defendant are 

* In England, in the United States Courts, and in most of the states, the 
common law rule has been altered, and parties are now competent and com- 
pellable to testify. 



58 ADAMS's DOCTRINE OF EQUITY. 

equally provided for, by the privilege, in his turn, of re- 
quiring from the plaintiff, by a cross suit (the reconvention 
of the civil law), the like discovery upon oath of all the 
circumstances within the plaintiff's knowledge. 

The jurisdiction thus enforced in the Courts of equity 
is, at the same time, carefully guarded, so that it may 
only elicit the truth, without wrong to the party exam- 
ined. He is not liable to be examined suddenly and 
w^ithout time for deliberation; he knows from the bill what 
are the objects aimed at; he has the plaintiff's statement 
and the whole of the interrogatories before him; he may 
give a modified or explanatory answer ; and he is aided 
by the advice of counsel, whose duty it is to see that 
everything really material is stated, as well as that the 
record of the Court is not encumbered with irrelevant 
matter. 

The Court of Chancery, as has already been observed 
in the Introduction, does not, in requiring discovery, de- 
part from the general policy of the law.^ It requires a 

^ When the suitor is an individual, although he may be a sovereign of a 
foreign state suing in his capacity as sovereign, yet he is bound to answer 
to a cross bill : The King of Spain v. Hallett, 6 Clark & F. 333 ; and to an- 
swer upon oath. But, as the right of a plaintiflf to sue does not depend 
upon the eflFectiveness of the discovery which on a cross bill may be exacted 
from him, a republic, like the United States, for example, can sue, although 
no effectual discovery could be had from it on a cross bill : United States 
V. Wagner, L. R. 2 Ch. Ap. 582. But a suit in the name of " the government 
of the State of Columbia" is too vaguely brought : Columbian Government 
V. Rothschild, 1 Sim. 94, Whether the executive of a foreign republic can 
be made a defendant for the purpose of obtaining discovery on a cross bill 
seems to be doubtful. See Prioleau v. The United States, L. R. 2 Eq. 659 ; 
United States v. Wagner (supra). The proper course would seem to be for 
the defendant to apply to the republic plaintiff to name some person from 
whom the discovery sought for may be obtained ; and if the information 
is refused, the Court will be justified in staying proceedings in the suit 
until the defendant's demand is complied with : United States v. Wagner, 
per Lord Chelmsford. 



OF DISCOVERY. 59 

defendant to discover the truth of the plaintiff's claim, 
notwithstanding that he is himself the party sued ; but 
it does not require him to answer questions which, on 
grounds of general policy, he is entitled to resist.^ In 
accordance with this principle it is held, first, that no 
man need discover matters tending to criminate himself, 
or to expose him to a penalty or forfeiture ; secondly, that 
no man need discover legal advice which has been given 
him by his professional advisers, or statements of facts 
which have passed between himself and them in reference 
to the dispute in litigation ; and thirdly, that official per- 
sons cannot be called on to disclose any matter of State, 
the publication of which may be prejudicial to the com- 
munity. 

The first of these maxims is, that " no man need dis- 
cover matters tending to criminate himself, or to expose 
him to a penalty or forfeiture." He has a right to refuse 
an answer, not merely as to the broad and leading fact, 
but as to every incidental fact which may form a link in 
*the chain of evidence, if any person should choose p^^q-i 
to indict him. [ay 

(a) East India Company v. Campbell, 1 Ves. sen. 246 ; Claridge v. Hoare, 
14 Ves. 59, 65 ; Litchfield v. Bond, 6 Bea. 88 ; Short ». Mercier, 3 Macn. 
& Gord. 205. 

^ The defendant may stop at any point in his answer, and defend him- 
self on the ground of privilege, notwithstanding other admissions therein : 
King of Sicilies v. Willcox, 1 Sim. N. S. 301. 

' It is well settled in the United States that a defendant in a Bill in 
Chancery is not bound to make a discovery as to any charge of felony 
against him, or as to any criminal oflFence involving moral turpitude • 
United States v. Saline Bank, 1 Peters 100; Northrop v. Hatch, 6 Conn* 
361 ; Skinner v. Judson, 8 Conn. 528 ; Hayes v. Caldwell, 5 Gillman 33 > 
Ocean Insurance Company v. Fields, 2 Story 59 ; The Union Bank v. Barker, 
3 Barb. Ch. 358; Marshall «. Riley, 7 Geo. 367; Poindexter v. Davis, 6 
Gratt. 481 ; Stewart v. Drasha, 4 McLean 563 ; Higdon v. Heard, 14 Geo. 



60 ADAMS's DOCTRINE OF EQUITY. 

If the objectionable nature of the discovery asked ap- 
pears on the bill, the protection may be claimed by de- 
murrer ; as, for example, if the bill alleges an usurious 
contract, maintenance, champerty, or simony ;^ or again, 
if it be filed to discover whether a defendant is married, 
who would thereby forfeit an estate or legacy, or to dis- 
cover matter which would subject a defendant, entitled to 
an office or franchise, to a quo warranto, {h) 

If the tendency of the question is not apparent on the 
bill, the defendant may take the objection by a plea set- 
ting forth by what means he may be liable to punishment 
or forfeiture, and may insist he is not bound to answer 
the bill, or so much thereof as the plea will cover. Thus 

(6) Mitford on Pleading, 4th edit. 193-197. 

255. And it eeems an action for slander is in the nature of a penal action, 
and comes within the general rule : Bailey v. Dean, 5 Barb. S. C. 297. So 
of a bill to set aside a conveyance on the ground of usury : Masters v. 
Prentiss, 2 Jones's Eq. 62. But a defendant may be compelled to make a 
discovery of any act of moral turpitude which does not amount to a public 
offence or an indictable crime : Watts v. Smith, 24 Miss. 77. A defendant 
is not privileged against discovery because it will expose him to penalties 
in a foreign country, of which he is a subject: King of Two Sicilies v. 
Willcox, 1 Sim. N. S. 301. As a corporation is not in general liable to 
indictment, it cannot on this ground resist discovery : Id. 334. So of a 
trustee in a bond for prospective illicit cohabitation, who is not himself ex- 
posed to criminal prosecution : Benyon v. Nettlefield, 3 Macn. & Gord. 94. 
And, in general, that discovery will subject others than the defendant to 
penalty or forfeiture, is no ground of protection : King of, &c. v. Willcox, 
1 Sim. N. S. 301. 

An Act of the Legislature which compels a party against whom pro- 
ceedings have been instituted for the recovery of a fine imposed by the 
same law, to a discovery under oath, is constitutional : Day v. The State, 
7 Gill 322 ; Higdon v. Heard, 14 Geo. 255. See also Union Bank v. Barker, 
3 Barb. Ch. 358. 

1 Atwill V. Ferrett, 2 Blatch. C. C. 39 ; Higdon v. Heard, 14 Geo. 255 ; 
Bank of U. S. v. Biddle, 2 Pars. Eq. 58 ; Masters v. Prentiss, 2 Jones's 
Eq. 62. The defendant cannot even waive this protection, for the law is, 
in this regard, his guardian : Id. 



OF DISCOVERY. 61 

to a bill brought to a discovery of a marriage, the defend- 
ant pleaded with success that the person whom she was 
alleged to have married had previously married her sister, 
so that the marriage, if real, was incestuous ; and to a 
bill against bankers for obtaining a re-transfer of stock, 
alleged to have been unduly obtained from the plaintiff 
for the purpose of making good a deficiency in his son's 
accounts, the defendants pleaded that the transaction re- 
ferred to a fraudulent embezzlement by the son as their 
clerk, and amounted therefore to a composition of felony; 
and they were held to be exempt from giving discovery. 
In like manner, where a bill was filed to discover whether 
the defendant had assigned a lease, he pleaded to the dis- 
covery a proviso in the lease, making it void in case of 
assignment. And to a bill seeking a discovery whether 
a person under whom the defendant claimed was a papist, 
the defendant pleaded his title and the statute of 11 & 
12 Wm. 3, disabling papists. But such a plea will only 
bar the discovery of the fact which would occasion a for- 
feiture. Therefore, where a *tenant for life pleaded r-^,-^ 
to a bill for discovery whether he was tenant for life 
or not, that he had made a lease for the life of another, 
which, if he was tenant for his own life only, might occa- 
sion a forfeiture, the plea was overruled. So upon a bill 
charging the defendant to be tenant for life, and that he 
had committed waste, it was determined that he might 
plead to the discovery of the waste, but that he must 
answer whether he was tenant for life or not.(c) 

If the facts are such as to exclude both a demurrer 
and a plea, the privilege may be claimed by answer, and 
if the defendant states in his answer that he cannot give 

(c) Mitf. 284-287 : Claridge v. Hoare, 14 Ves. 59. 



62 ADAMS's DOCTRINE OF EQUITY. 

the information asked without affording evidence of his 
crime, he will not be compellable to give it.(c/)^ 

The protection thus afforded to a defendant against 
being compelled to prove himself guilty of a criminal act, 
is subject to modification in respect to frauds.^ And it 
seems that an objection will not hold to discovery of a 
fraud, on the mere ground that it might be indictable as 
a conspiracy at law, unless there is an indictment actually 
pending, or at all events a reasonable probability that one 
will be preferred. The result of an opposite course would 
be to render the very magnitude of a fraud its protection 
against redress. (€)^ It has also been decided that a de- 
fendant may have so contracted with the plaintiff as to 
bind himself to make discovery of the facts relating to 
that contract, notwithstanding th^t it may subject him to 
pecuniary penalties ; and therefore a London broker was 
compelled to give discovery in aid of an action brought 
against him by his employer for misconduct, although it 
subjected him to the penalty of a bond given for the 

(d) Parkhurst v. Lowten, 1 Meriv. 391 ; s. c. 2 Swanst. 194, 214 ; Att.- 
Gen. V. Lucas, 2 Hare 566. 

(e) Dummer v. Corporation of Chippenham, 14 Ves. 245 ; Lee v. Read, 
5Bea. 381. 

^ The defendant should state that he believes that the discovery will sub- 
ject him to penalties : Scott v. Miller, Johns. 328. 

^ A Court of Chancery will generally compel a discovery to detect fraud 
and imposition, and to set aside a fraudulent conveyance: Skinner v. 
Judson, 8 Conn. 528 ; Attwood v. Coe, 4 Sandf. Ch. 412. And see the 
application of the exception in cases of privileged communications infra, 
note to page 6. 

^ Howell V. Ashmore, 1 Stockton (N. J.) 82. If, in a bill charging fraud, 
the defendants, without demurring, answer, they must answer fully. An 
answer that their innocence will appear by the accounts disclosed pre- 
cludes them from objecting to the order to produce them : O'Connor v. 
Tack, 2 Brews. (Pa.) 407. 



OF DISCOVERT. 63 

faithful discharge of his official duties. It was his duty 
to give the account asked, and he was not allowed to set 
up his own violation *of the law as an excuse for 
its non-performance. It was observed by the Court ^ J 
that if such a defence were permitted, it might be difficult 
to show any reason why an executor or administrator 
who has made oath duly to administer the assets, and 
has executed a bond for that purpose, might not allege 
those matters in answer to a bill, charging him with a 
fraudulent account. It seems, however, that a mere con- 
tract by the defendant to answer, and not to avail himself 
of the protective privilege, does not per se exclude him 
from the protection of the law.(/) 

In addition to the cases just mentioned, there are other 
cases which have been termed exceptions to the doctrine, 
but which are in fact instances to which its principle does 
not apply. Such, for instance, are those where the 
penalty has ceased by effluxion of time, or where the 
the plaintiff is alone entitled to the penalty, and expressly 
waives it by his bill ;(y)^ or where what is called a penalty 
or forfeiture is in reality mere stipulated damages or cessa- 
tion of interest. Thus where a lessee covenanted not to 
dig clay or gravel, except for the purpose of building on 
the land demised, with a proviso that if he should dig for 
any other purpose he should pay to the lessor twenty 
shillings a load, and he afterwards dug great quantities 
of each article ; on a biU for discovery of the quantities, 
waiving any advantage of a possible forfeiture of the 
term, a demurrer of the lessee, because the discovery 

(/) Mitf. 195 : Green v. Weaver, 1 Sim. 404 ; Lee r. Read, 5 Bea. 381. 
[g] Mitf. 195-197 : Trinity House Corporation t". Burge, 2 Sim 411. 

^ Skinner v. Judson, 8 Conn. 528. But see Northrop c. Hatch, 6 Conn. 
361 ; Dwinal v. Smith, 25 Maine 379. 



64 ADAMS's DOCTRINE OF EQUITY. 

might subject him to payment by way of penalty, was 
overruled. And where a devise over of an estate in case 
of marriage was considered a conditional limitation, and 
not a forfeiture, an answer as to a second marriage was 
compelled. In like manner where the discovery sought 
is of matter which would show the defendant incapable 
of having an interest, as, for example, whether a claimant 
by devise is an alien, and consequently incapable of taking 
r*A"| ^y purchase, a demurrer will not hold. {hy In *re- 
spect also to some transaction made illegal by sta- 
tute, such as gaming and stockjobbing, it has been ex- 
pressly enacted, that the parties shall be compellable to 
give discovery in equity, notwithstanding that by so doing 
they may expose themselves to penalties. («)^ 

The second maxim of privilege is, that no man need 
discover legal advice which has been given him by his 
professional advisers : or statement of facts which have 
passed between himself and them in reference to the dis- 
pute in litigation.^ 

(A) Mitf. 195, 196, 197. 

(i) Mitf. 288 ; 9 Ann. c. 14, s. 3 ; 7 Geo. 2, c. 8, s. 2. 

^ See Hambrook v. Smith, 16 Jur. 144. 

^ But it has been recently held that a plea to discovery in a bill for an 
account, that the party would subject himself by answering to the penalties 
of the Stockjobbing Act, was good : Short v. Mercier, 3 Macn. & Gord. 
205 ; Robinson v. Lamond, 15 Jur. 240. 

^ The application of the rule prohibiting the discovery of legal advice, 
depends first upon the character of the parties — secondly upon the rela- 
tions existing between them — and lastly upon the surrounding circum- 
stances. The communication to be protected must, in the first place, be 
made between the client and his legal adviser only: Parker v. Carter, 4 
Munf. 273 ; Jackson v. Inabinit, Riley Ch. 9 ; March v. Ludlum, 3 Sandf. 
Ch. 35; Crosby w. Berger, 11 Paige 377; Stuyvesant v. Peckham, 3 Ed. 
Ch. 579 ; The Bank of Utica v. Mersereau, 3 Barb. Ch. 528 ; or some per- 
son acting as that adviser's clerk or agent: Parker v. Carter, 4 Munf. 
273 ; Russell v. Jackson, 9 Hare 387 ; Goodall v. Little, 1 Sim, N. S. 155 ; 



OF DISCOVERY. 65 

The statement of the above doctrine is thus limited in 
its terms, because it seems doubtful whether statements 

Jenkyns v. Bushby, L. R. 2 Eq. 547 ; Lafone v. Falkland Islands Co., 4 K. 
& J. 34 ; Walsham v. Stainton, 2 Hem. & M. 1 ; Reid v. Langlois, 1 Mac. 
JL- G. 627. See, however, Ross v. Gibbs, 8 Eq. L. R. 522, where Stuart, 
V.-C, held, that communications with an unprofessional agent were privi- 
leged. Hooper p. Gumm, 2 John. & H. 602 ; but the rule does not apply 
to a student in counsel's oflBce : Andrews v. Solomon, Pet. C. C. 356 5 nor 
to the son of the attorney, happening to be present in the office, and not 
connected professionally with his father : Goddard v. Gardner, 28 Conn. 
172 ; nor to a confidential clerk : Corps r. Robinson, 2 Wash. C. C. 388 ; 
nor to a stranger casually present : Jackson v. French, 3 Wend. 337 ; nor 
to communications between solicitors of opposite parties: Gore v. Bowser, 
5 De G. & Sm. 30 ; nor to communications between different defendants 
made for the purpose of being laid before their solicitor: Goodallr. Little, 
1 Sim. N. S. 155 ; though see Jenkyns v. Bushby, L. R. 2 Eq. 547 ; also 
Betts r. Menzies, 26 L. J. Ch. 528. In the second place the relation of 
solicitor and client must actually exist between the parties ; therefore, if 
a lawyer acts simply as a friend, communications to him in that capacity 
will not be protected : Coon v. Swan, 30 Verm. 6 ; nor communications 
made after the relation has ceased to exist : Yordan v. Hess, 13 Johns. 
492 ; and the client must not be a merely nominal party, but must have 
some interest in or control over the suit: Id. 219; Hamilton v. Neel, 7 
Watts 517. 

Lastly, the circumstances under which the communication is made are 
to be taken into consideration. It was at one time thought that the rule 
applied only to disclosures made when there was a cause pending ; see 
infra pp. 6 and 7 in the text, and also Whiting v. Barney, 30 N. Y. 330, 
where the origin of the protection is explained and the old rule in this re- 
spect adhered to ; but communications made after a dispute has arisen, 
though before litigation are now protected: see Warde v. Warde, 1 Sim. 
X. S. 18 (endorsed on another point in 3 Mac. & Gord. 365) ; Jenkyns r. 
Bushby, L. R. 2 Eq. 547 ; Bluck v. Galsworthy, 2 Giff. 453 ; McLellan v. 
Longfellow, 32 Maine 494 ; McMannus r. The State, 2 Head 213 ; and the 
privilege has been extended to matters disclosed to an attorney who has 
been employed to draw a deed : Parker p. Carter, 4 Munf. 273 ; though see 
The Bank of Utica r. Mersereau, 3 Barb. Ch. 528 ; or an affidavit to get an 
assessment reduced : Williams v. Fitch, 18 N. Y. 546. 

This privilege against discovery extends only to those matters " in which 
it is lawful for the client to ask and the solicitor to give professional ad- 
vice-," and therefore not to cases of fraud concerted between counsel and 
client : Reynell ». Sprye, 10 Beav. 51 ; 11 Beav. 618 ; Gart«ide v. Ontram, 
5 



66 ADAMS's DOCTRINE OF EQUITY. 

of fact which have passed between himself and his ad- 
visers, if made before the litigated question arose, are en- 
titled to the same privilege. There is no doubt that the 
privilege exists, where the discovery is sought from the 
professional adviser ; for the rule is in all cases imperative 
and express, that wherever an attorney or counsel is pro- 
fessionally employed, any communication with his client 
for the purpose of that employment is privileged; and 
whether he be examined as a witness, or whether he be 
made on some special ground a defendant in the suit, he 
cannot divulge what he has so learnt, [k) There is also 

[k) Greenough v. Gaskell, 1 M. & K. 98 ; Herring v. Clobery, 1 Ph. 91 ; 
Jones V. Pugh, 1 Ph. 96. 

26 L. J. Ch. 113. The fraud, however, must be concocted between the 
solicitor and client, and when the fraud is purely collateral to the com- 
munication, and none was charged on the part of the solicitor, the com- 
munication was protected : Mornington v. Mornington, 2 Johns. & II. 697. 
The privilege against discovery is, in general, inapplicable to communi- 
cations between a testator and his solicitor, with reference to the dispo- 
sitions contained in his will, notwithstanding that the enforcement of dis- 
covery may lead to the disclosure of an illegal purpose entertained by the 
testator, as of a secret trust : Kussell v. Jackson, 9 Ilare 387. But in a 
case where this question did not arise on the dispositions of the will, but 
only collaterally, such communications were held privileged : Chew v. 
Farmers' Bank of Maryland, 2 Maryl. Ch. Dec. 231. The rule of privilege, 
also, is inapplicable to communications between a solicitor and one under 
whom both parties to a cause claim : Chant v. Browne, 16 Jur. 606 ; s. c, 
9 Hare 790. 

Where husband and wife have distinct interests, and the wife is induced, 
in dealing with those interests, to act under the advice of the husband's 
solicitor, the latter is to be deemed to act as the solicitor of both, and 
either has the right to the production and inspection of the documents re- 
lating to such transaction, which have come in the course thereof into the 
solicitor's possession : Warde v- Warde, 3 Macn. & Gord. 365, 

The privilege in question is confined to communications, and does not 
apply to the acts of the parties: Kelly v. Jackson, 13 Irish Eq. 129. 

In some states, as in Georgia and Missouri, these communications be- 
tween solicitor and client are protected by statute. 



OF DISCOVERY. 67 

no doubt that where discoTery is sought from the client, 
he is not bound to discoA^er the advice*or opinions which 
have been given. But it has been contended, and gene- 
rally considered, that he must disclose the statements on 
which they were given, unless made in contemplation of 
or pending a suit. The existence, however, of this sup- 
posed liability in the client seems open to doubt. The 
cases which have been considered to establish it, are ap- 
parently capable of a different interpretation ; and it seems . 
difficult to discover any substantial difference, in point of 
reason, principle, or convenience, between the liability of 
the client, and that of his ^counsel or solicitor, to r-^j-, 
disclose communications made in confidence, or be- 
tween the communications so made and others which differ 
from them only in this, that they precede instead of fol- 
low the actual arising of a dispute. (/) If, before the 
communications were made, litigation, or a dispute ending 
in litigation, had commenced, the client is certainly ex- 
empt from discovery, at least if they related to the dispute, 
or matters in dispute. The first point decided on this 
subject was, that communications made pending litigation, 
and with reference to such litigation, were privileged. 
The next, that communications made before litigation, but 
in contemplation of, and with reference to, litigation which 
was expected and afterwards arose, were entitled to the 
same privilege A third question then arose with regard 
to communications taking place after a dispute had arisen 
between the parties, which was afterwards followed by 
litigation, but not made in contemplation of, or with ref- 
erence to, that litigation ; and these communications were 
also protected.^ And it was finally decided that a defend- 

(Z) Pearse v. Pearse, 1 De G. & S. 12. 

* Warde v. Warde, 1 Sim. N. S. 18, reversed on another point, 3 Macn. 
& Gord. 365 ; McLellan v. Longfellow, 32 Maine 494. See Jenkyns v. 



,68 ADAMSES DOCTRINE OF EQUITY. 

ant might protect from discovery in the suit of one party, 
cases or statements made after litigation commenced or 
contemplated on the same subject with other persons, 
with the view of asserting the same right, {pi) The right 
to protection is not aifected by the circumstance that the 
communications have not been made directly to or by the 
solicitor or counsel, but have been transmitted through an 
intermediate agent, (w)^ But it is essential that they 
should be made in respect of his professional character, 
and it is not sufficient to allege that they were communi- 
cations with a solicitor, or that they bore a reference to 
the legal proceedings, (o)^ 

The third maxim of privilege protects official persons 

po-, *froni disclosing matters of State, the publication 

of which might be prejudicial to the community. 

Such, for example, are official communications between 

the governor and law officer of a colony, respecting the 

(to) Walsingham v. Goodricke, 3 Hare 122 ; Holmes v. Baddeley, 1 Ph. 
476. 

(n) Bunbury v. Bunbury, 2 Bea. 173 ; Steele v. Stewart, 1 Ph. 471. 

(o) Bunbury v. Bunbury, 2 Bea. 173 ; Greenlaw v. King, 1 Bea. 137 ; 
Dartmouth v. Holdsworth, 10 Sim. 476 ; [Chew v. Farmers' Bank, 2 Maryl. 
Ch. Dec. 231.] 

Bushby, L, R. 2 Eq. 547 (V.-C. Kindersley), where a case stated, prepared 
by the solicitor of a predecessor in title to the defendant, and the opinion 
of counsel thereon, was protected — the opinion having been given before 
litigation was commenced, but after a dispute had arisen. But communi- 
cations before any dispute had arisen, are not privileged : Hawkins v. Gath- 
ercole, 1 Sim. N. S. 150. 

^ Russell V. Jackson, 9 Hare 387 ; Goodall v. Little, 1 Sim. N. S. 155; 
Jenkyns v. Bushby, L. R. 2 Eq. 547. 

^ No presumption of fact is to be made against any one for enforcing the 
rule against disclosure by his solicitor : Wentworth v. Lloyd, 10 H. L. 
Cas. 589. 



OF DISCOVERT. 69 

state of the colony; orders given by the governor to a 
military officer; correspondence between an agent of 
government and a secretary of State ; and other commu- 
nications of the same class. Such communications are 
privileged from disclosure, because if, at the suit of a 
particular individual, they were liable to production in a 
Court of justice, the effect would be to render them less 
unreserved, and thus to prejudice the public interest. 
Questions as to the extent of this privilege most usually 
arise in the examination of witnesses at law. But if dis- 
covery of matters within its scope be asked from a defend- 
ant in equity, he may successfully refuse to give it. (pY 

It will be observed that the exceptions just considered 
are merely exceptions to the right of discovery. There 
is no rule that matters falling within their scope cannot 
be alleged in a bill ; or, that, if proved, they may not 
warrant relief. But the plaintiff must prove them for 
himself, and has no right to examine the defendant re- 
specting them, {q) 

Subject to these exceptions, the rule respecting dis- 
covery is that "every competent defendant in equity 
must answer as to all facts, material to the plaintiff's case, 
he must answer to all, and not to a portion only, and he 
must answer distinctly, completely, and without needless 
prolixity, and to the best of his information and belief." 

{p) Phillipps on Evidence, 8th ed. 189 ; Smith v. East India Company, 
1 Ph. 50 ; Rajah of Coorg v. East Ind. Co., 25 L. J. Ch. 365. 
(g) Mitf. 196. 

* Although the principle cited in the text is familiar to the profession, 
yet the American editor has been able to discover only two cases bearing 
upon the subject, and these decided not in Chancery, but at law : Mar- 
bury V. Madison, 1 Cranch 144; 1 Burr's Tr., by Robinson, 186, 187. See 
this subject fully discussed in Rajah of Coorg v. East Ind. Co., 25 L. J. 
Ch. 345. 



70 Adams's doctrine of equity. 

As against an incompetent defendant discovery cannot be 
enforced, viz., against an infant, or lunatic without com- 
mittee, or the Attorney-General when made a defendant 
on behalf of the Grown, (r) 

The first rule respecting discovery is, that the defendant 
must answer to all facts material to the plaintiff's case.^ 

*He is not bound to answer questions of law; for 
•- -' such questions ought to be decided by the Court. 
He is not bound to answer questions of fact, unless rea- 
sonably material; for he is not to be harassed with idle, 
and perhaps mischievous, inquiries. And it will not be 
sufficient to show, that, somehow or other, they may be 
connected with the case; for if such connection be very 
remote, so that the discovery would be oppressive, it will 
be refused: as for example, where the bill charged an 
executor with mixing his testator's moneys with his own, 
and called on him to set out a monthly account of his 
banker's balances, with an account of his own property, 
debts, and liabilities, (s) And lastly, he is not bound to 
answer merely becausd the question is material to the 
issue, but it must be also material to the plaintiff's case;^ 

(r) Micklethwaite v. Atkinson, 1 Coll. 173. 

(s) Dos Santos v. Frietas, Wigr. on Discovery, s. 239 ; Janson v. Solarte, 

2 Y. & C. 127. 

^ Ouyler et al. v. Rogert et al., 3 Paige Ch. R. 186 ; Phillips v. Prevost, 
4 John. Ch. 205 ; Parkinson v. Trousdale, 3 Scammon 367 ; Hagthorp v. 
Hook, 1 Gill. & John. 272 ; Salmon v. Clagett, 3 Bland Ch. 142 ; Brooks 
V. Ryam, 1 Story 296-301 ; Langdon v. Goddard, 3 Story 13 ; Methodist 
Epis. Church v. Jaques, 1 John. Ch. 65 ; Bank of Utica v. Messereau, 7 
Paige 517; King v. Ray, 11 Paige 235; Kittredge v. Claremont Bank, 

3 Story 590 ; Champlin v. Champlin, 2 Edw. Ch. 362 ; Robertson v. Bing- 
ley, 1 McC. Ch. 333 ; Wootten v. Burch, 2 Maryl. Ch. Dec. 190 ; Rider v. 
Riley, Id. 16 ; Waring v. Suydam, 4 Edw. Ch. 426. 

* The plaintiff is entitled to discovery of the defendant's title, for the 
purpose of repelling what he anticipates vrill be the case set up by the de- 
fendant, though not of the evidence by which it is to be supported : Atty.- 



OF DISCOVERY. 71 

for although the plaintiff is entitled to know what the 
defence is, and to have it verified on oath, he is not 
entitled to cross-examine the defendants as to the pre- 
cise mode in which he intends to establish it.(^) 

Some doubt has been thrown upon the applicability of 
this last doctrine where the discovery is sought in aid of 
the defence to an action, or to a suit already pending in 
equity. The language of the cases which have created 
the doubt may certainly be taken to imply that, in answer 
to such a bill, the defendant is bound to set forth his evi- 
dence. But it may be doubted whether it was intended 
to go so far, and whether it must not be limited to the 
general rule, that he must answer as to the nature of his 
title, and as to the truth of the assertions by which he 
sustains it, though not as to the particular evidence on 
which he relies, (w)^ 

{t) Llewellyn v. Badeley, 1 Hare 527 ; [Atty.-Gen. v. Corp. of London, 2 
Macn. & Gord. 247 ; CuUison v. Bossom, 1 Maryl. Ch. Dec. 95.J 

(«) Lowndes v. Davies, 6 Sim. 4G8 ; Bellwood t'. Wetherell, 1 Y. & C. 
211-218 ; Wigr. on Discovery, s. 378 ; Glascott v, Copperminers' Company, 
11 Sim. 305 ; Mitf. 53. 



Gen. V. Corp. of London, 2 Macn. & Gord. 247. So, he has a right to the dis- 
covery of evidence in support of his title, in proof of any fraud which has 
been committed to his injury, though the defendant may thereby be com- 
pelled to disclose the evidence in support of his own : Stainton v. Chad- 
wick, 3 Macn. & Gord, 575 ; see Young v. Colt, 2 Blatch. 0. 0. 373. 

"Where a defendant holds a covenant for the protection of deeds for the 
maintenance and manifestation of his title, he is not bound to answer to 
interrogatories to set out such deeds in a suit, the object of which is to 
show that a disputed piece of Idnd is not comprised in the defendant's 
title : Bethell v. Casson, I Hem. & M. 806. 

It seems that in Massachusetts, a more extended right of inquiry is 
allowed, and that the rule with regard to the title of the defendant is not 
applied so strictly : Haskell v. Haskell, 3 Cush. 542. 

^ In Swaby v. Sutton, 1 Hem. & M. 514, the bill stated two indentures 
of settlement, giving dates, and prayed an account, &c., under them. The 



72 Adams's doctrine of equity. 

This rule is embodied in the maxim that "if a defend- 
r*-|A-] ant *answers at all, he must answer fully;" and 
its meaning is, that if a defendant, instead of de- 
murring or pleading to the bill, puts in an answer, and 
thus professes to take issue on the whole case, and to go 
to a hearing on the whole, he cannot deny a portion of 
the plaintiff's statement, and than allege that, in conse- 
quence of such denial, the rest of the discovery sought 
has become immaterial.^ If he wish to insist on that 
point, he must protect himself by demurrer or plea, rest- 
ing his defence on the statement in the bill, or on a single 
independent issue. If he does not adopt that course, but 
goes to a hearing on the whole controversy, he must give 
discovery on all points, so that the plaintiff, if the decision 
be in his favor, may obtain a complete decree, (z^)^ It is 
manifest from this explanation of the rule, that it applies 
to such matters only as are in themselves proper objects 

(») Lancaster v. Evors, 1 Ph. 340; [Reade v. Woodruffe, 24 Beav. 421.] 

answer was that there was an indenture of another date, and an appoint- 
ment exercised under that excluding the plaintiff, and gave no account. 
Held insuflBcient. " If you choose to rest on a short point," said Wood, 
V.-C, " you must do so by plea ; or if not, you must answer ; but then you 
must meet the way in which the plaintiff puts his case, and must answer 
fully everything which, if answered according to his view, would assist 
him at the hearing." 

^ See Bains v. Goldey, 35 Penna. St. 51. See also, Chichester v. Mar- 
quis of Donegal, 4 Chancery Appeal Cases 416. 

^ Inglessi v. Spartali, 29 Beav. 564. By the interrogatories of a bill 
filed by a foreign merchant against his London agent, the defendants were 
asked what were the powers and authorities given to them (in relation to 
selling currants), and by what documents they made out the same. The 
defendants stated that the powers and authorities appeared from written 
correspondence, and that various letters had passed between the parties to 
which they referred. Held, that the answer was insufficient, and that the 
defendants were bound to specify the documents containing their powers 
and authorities. 



OF DISCOVERY. 73 

of discovery. It will not, therefore, apply to interroga- 
tories respecting privileged matters, or respecting matters 
which are immaterial, or which do not concern the plain- 
tiff's case, or which for any other reason are not among 
the subjects on which the court enforces discovery . (««') 

The last rule is that the defendant must answer dis- 
tinctly, completely, without needless prolixity, and to 
the best of his information and belief.^ 

His answer must be distinct, as containing a positive 
allegation of each fact, and not merely implying it by way 
of argument. And it must distinctly meet each specific 
question by a specific reply ; for the object of specific 
questions is to sift the defendant ; and it might happen 
that, when he came to answer on individual points, it 
would recall matters to his memory. An inquiry, for 
example, whether the defendant did not receive a speci- 
fied sum at a specified time; is not sufficiently answered 
by giving a schedule of receipts, which does not include 
that *sum, and then saying that the schedule con- r-^^ -. -i 
tains a list of all moneys received. (2:) 

It must be complete, and so framed that the plaintiff 
can effectually make use of it. For instance, if the 
plaintiff were to ask for an account, it would not be suffi- 
cient to tender him a collection of account-books, saying 

(tr) Wood r. Hitchings, 3 Bea. 504. 

[x) Faulder v. Stuart, 11 Ves. 296 ; Mitf. 309, 210; "Wharton r. Whar- 
ton, 1 S. & S. 235 ; Anon., 2 Y. & C. 310 ; Tipping v. Clarke, 2 Hare 383, 
389 ; [Duke of Brunswick v. Duke of Cambridge, 12 Beav. 281.] 

» Taylor ». Luther, 2 Sumner 228 ; Woods v. Morrell, 1 John. Ch. 103 
Smith r. Lasher, 5 John. Ch. 247 ; Mechanics' Bank v. Levy, 1 Edw. Ch 
316 ; Tradesmen's Bank v. Hyatt, 2 Edw. Ch. 195 : Wyckloff v. Sniffen, Id 
581 ; Norton v, Warner, 3 Edw. Ch. 106 ; Robinson v. Woodgate, Id. 422 
Sloan v. Little, 3 Paige Ch. 103 ; Bailey r. Wilson, 1 Dev. & Bat. Ch 
188 ; Pettit V. Candler, 3 Wend. 618. 



74 ADAMS's DOCTRINE OF EQUITY. 

that he would find the account there. But the defendant 
must himself examine the books and make out a reason- 
able account, referring to the books for verification and 
details, (y) The rule, however, will not be enforced to an 
oppressive extent. And, therefore, where the executors 
of a deceased partner were called upon for the accounts 
of a partnership, and answered that they could not state 
them from their own knowledge ; that they had tried to 
make them out from the books, but found it would occupy 
a great time, and be a ruinous expense ; and that the 
plaintiff was at liberty to inspect the books himself ; the 
answer was held sufficient, on the ground that they had 
not been personally concerned in the transaction, and that 
they had given the plaintiff an opportunity of making out 
the account as fully as they could do themselves. (0)^ 

It must be framed without needless prolixity. The 
chief cases in which the prolixity of an answer has been 
discussed, were those where accounts were demanded of 
receipt and expenditure.^ And it has been repeatedly 
decided that, although an interrogatory requiring such 
accounts would not be satisfied by a mere general state- 
ment, yet a statement setting forth the items of a trades- 

[y) White v. Williams, 8 Ves. 193 ; Attorney-General v. East Retford, 2 
M. & K. ;:5 ; Wigr. on Discovery, s. 283. 
(z) Christian v. Taylor, 11 Sim. 401. 

' But even if a detailed statement would be too burdensome, the defend- 
ant must, nevertheless, do all in his power to facilitate an examination of 
the accounts by the plaintiif. Thus in Drake v. Symes, Johnson G47, 
where a bill was filed by a shareholder in an insurance company against 
the directors, asking for an account, and demanding a list of the lives in- 
sured, their ages, the bonuses paid, &c., &c., it was held that an answer 
which merely referred to the books of the company, and set forth those 
books in a schedule, was not sufficient ; for (as Vice-ChancoUor Wood re- 
marked) there should have been some reference to the heads of informa- 
tion and some additional facilities should have been afforded the plaintiff. 



OF DISCOVERY. 75 

man's bill, or copying an auctioneer's catalogue of furni- 
ture, is impertinent, and will be expunged by the Court, {a) 
If, however, the matters inquired after be material to the 
*defence, mere prolixity, such as setting out docu- pj^.-, n-i 
ments at length which might have been simply 
referred to, will not be dealt with as impertinence, although 
it may be attended with the risk of costs. For in case 
the answer should ever be used against the defendant in 
a Court of law, a part of it could not be so used without 
the whole ; and therefore the setting out of such docu- 
ments may ultimately prove of importance. (J) 

It must be to the best of the defendant's information 
and belief. And the information meant is not only that 
which he actually possesses, but that also which, either 
by inspecting his books, or by making inquiries of his 
solicitors or agents, or of others from whom he has a right 
to information, is fairly within his reach. And a mere 
allegation that he believes such parties will not give him 
the information, or even that they have refused to do so, 
will not be sufficient to excuse its want. Whatever means 
of information he has a right to possess, the Court will 
look upon as being in his possession ; and he must resort 
to proper means for enforcing his right, (c)* 

(a) Norway v. Rowe, 1 Meriv. 346 ; Byde t?. Masterman, Cr. & P. 265 ; 
Davis V. Cripps, 2 N. C. C. 435. 

[h] Parker v. Fairlie, 1 S. & S. 295 ; T. & R. 362 ; Lowe v. ■Williams, 2 
S. & S. 574. 

(c) Taylor v. Rundell, Cr. & P. 104; 1 N. C. C. 128 ; IPh. 222; [Clinch 
V. Financial Corporation, L. R. 2 Eq. 271 ;] Glen^jall v. Frazer, 2 Hare 99 ; 
Stuart V. Bute, 11 Sim. 442. 

* Dinsmoor v. Ilazleton, 2 Fost. (N. H.) 535 ; Green v. Carey, 12 Geo. 601. 
But a defendant is not compellable to redeem documents relating to mat- 
ters in question in a suit, which were pledged by him previous to the in- 
stitution of the suit : Liddell v. Norton, 23 L. J. Ch. 169. And he is not 
bound to produce documents for which he merely holds a covenant for 
production against a third party : Bethell v. Casson, 1 Hem. & M. 806. 



76 ADAMs's DOCTRINE OF EQUITY. 

A question has sometimes been raised whether a plain- 
tiff having a document in his possession, can by his bill 
call on the defendant to inspect it, and then to give an 
answer with respect to its contents. There appears to be 
some doubt on this point, (c?) • 

A defendant is also bound, if required by the plaintiff, 
to set forth a list of all documents in his possession, from 
which discovery of the matters in question can be ob- 
tained ; and if the possession of such documents and their 
character as fit subjects of discovery, can be shown from 
the answer, he must permit the plaintiff to inspect and 
copy them.^ 

In order to obtain this production, an interrogatory is 

{d) Shepherd v. Morris, 1 Bea. 175, 179. 

^ Roosevelt ». Ellithorp, 10 Paige 415; see also Collom v. Francis, 1 
Parsons' Select Eq. Cases 527. A party is not entitled to a discovery of 
title deeds relating solely to his adversary's title : Thompson v. Engle, 3 
Green Ch. 271 ; Lewis v. Davies, 17 Jur. 253 ; Cullisonu. Bossom, 1 Maryl. 
Ch. 95 ; though privity between title of defendant and plaintiff may give 
the right: Cullison v. Bossom, A defendant is not bound to produce by 
way of answer, any public documentary evidence of which he is the official 
keeper : Salmon v. Clagett, 3 Bland. Ch. 145. But land agents will 
be directed to deliver up maps, plans, &c., made or collected in the course 
of their employment, though it is alleged that they were made for their 
own private use : Beresford v. Driver, 14 Beav. 387. 

Under the Pennsylvania Statute of the 16th of June, 1836, the Supreme 
Court has not jurisdiction to compel the discovery of title deeds, unless 
material to an issue pending in court: Mange v. Guenat, 6 Whart. 141, 

An heir at law is not entitled to the production of title deeds ; but an 
heir in tail is, and so also is a devisee : Shaftesbury v. Arrowsmith, 4 Ves., 
66 ; Rumbold ». Forteath, 3 K. & J. 748 ; Story's Equity, s. 1092. But an 
heir at law is entitled to the production of such documents or parts of 
documents as will prove his pedigree : Rumbold v. Forteath, supra. 

By the 14 & 15 Vict. c. 99, sect. 6, the Courts of common law of Eng- 
land, are authorized to require the production of documents, as might have 
been previously done by means of a bill in equity. Similar statutes exist 
in most of the United States. 



OF DISCOVERY. 77 

*generally included in the bill, asking whether rHj-io-i 
the defendant has any documents in his possession 
or power relating to any of the matters alleged, and re- 
quiring him to enumerate and describe them in the 
schedule. If he admits the possession of such docu- 
ments, a motion is made that he may produce them, that 
the plaintiff may have liberty to inspect and copy them, 
and that they may be produced before the examiner and 
at the hearing of the cause/ 

The right thus conferred of enforcing the production of 
documents, is a substitute for the more troublesome and 
expensive method of requiring their contents to be set out 
in the answer :^ and in conformity with this view it is 
held, first, that the right exists for the purpose of dis- 
covery alone ; and secondly, that it must be regulated by 
the same principles which regulate the right to discovery 
in the answer itself. 

It is a right existing for the purpose of discovery alone 
and does not depend on, nor will be aided by a title to 
possess the documents themselves. 

It may happen that a suit is instituted for the purpose 
of obtaining possession of documents, alleged to be im- 
properly withheld from the plaintiff; and if that be its 
object, and the discovery be not barred by demurrer or 
plea, the plaintiff is entitled to have them described in 

* An affidavit in support of a motion for the production of books of ac- 
count and papers, should specify or refer to some particular entry or paper, 
or state some fact or circumstance to show the necessity of an inspection : 
Phelps V. Piatt, 54 Barb. (N. Y.) 557. 

Such affidavit should be made by the plaintiff, or if by the attorney, some 
reason therefor should be shown : Ibid. 

* Carpenter v. Benson, 4 Sandf. Ch. 496. Therefore, where exceptions 
would not be sustained, if the bill called for a full statement, production 
will not be required, though the custody of the documents is admitted ; as 
where an answer under oath is waived : Ibid. 



78 ADAMS's DOCTRINE OF EQUITY. 

the answer, and to be informed whether they are in the 
defendant's possession, because, without proof on those 
points, he could not, supposing his claim to be well- 
founded, obtain a. perfect decree. If the documents on 
inspection, will or may afford evidence to sustain his claim, 
he has a further right to their production on the general 
principles of discovery ; but, unless he can require them 
on that ground, the mere fact that he claims them as his 
own, will not entitle him to see them, until after the 
decree, (e) 

It is regulated by the same principles which regulate 
the right to discovery in the answer itself. 
r*1 4-1 ^"^^ immediate consequence of this doctrine is, 
that the right to production must be shown from 
admissions in the answer, and cannot rest on extrinsic 
evidence. The question is not, whether the allegations 
in the answer are true or false ; for, to try that question, 
would require a hearing of the cause ; but it is whether, 
in respect of the plaintiff's right to discovery, the docu- 
ments are necessary to make the discovery complete. If, 
therefore, the defendant does not admit their possession, 
or their relevancy to the plaintiff's case, the production 
cannot be enforced.^ The same result will follow, if they 
are uncertainly described, so that the Court cannot ascer- 

(e) Wigr. on Discovery, s. 295-298 5 [Snoddy v. Finch, 9 Rich. Eq. 355.] 

^ Upon a motion for the production of documents, the court will not re- 
ceive evidence extraneous to the answer, to show that a particular docu- 
ment had been fraudulently omitted from the schedule, although the de- 
fendant does not object to the extraneous evidence, and has adduced 
evidence to contradict it: Reynell v. Sprye, 1 De G. Macn. & Gord. 656. 
So, the plaintiff is not, on an allegation that extracts from books, sworn 
to, embrace everything bearing on the controversy, are garbled, entitled 
therefore to have inspection of the whole books : Robbing v. Davis, 1 
Blatchf. 238. 



OF DISCOVERY. 79 

tain to what its order should apply. (/) If the bill con- 
tained interrogatories to elicit the requisite admissions, 
and the answer has failed to give them, it may be open to 
an exception forinsufficiency ; or if the interrogatories have 
been inadequately framed, their inadequacy may render 
an amendment requisite, but in either case the admissions 
must be extracted from the defendant before the order for 
production can be made. 

The admissions necessary to compel production are. 
that the documents are in the defendant's possession or 
power, and that they are of such a character as to con- 
stitute proper matters of discovery within the ordinary 
rules.^ 

The documents must be in the defendant's possession 
or power. And for this purpose, it is sufficient that they 
are admitted to bel'ong to him, although they may be out 
of his actual custody. The possession therefore of his 
solicitor or agent, or of any other person whose possession 
he can control, is equivalent to his own.(^)^ If, however, 

(/) Inman r. Whitley, 4 Bea. 548 ; Tipping v. Clark, 2 Hare 383, 389. 

(g) Ex parte Shaw. Jac. 270 ; Morrice v. Swaby, 2 Bea. 500 ; [Lady Beres- 
ford V. Driver, 14 Beav. 387 ; Bobbins v. Davis, 1 Blatchf. C. C. 238. See 
ante, note to p. 12.] 

^ Where the bill charges the possession of documents which relate to 
the matters in question, the defendant cannot protect himself from setting' 
out a list and description of the documents, by merely alleging his belief 
that they do not contain evidence of or tend to show the plaintiffs title, 
but he is bound distinctly to negative the allegations of the bill : Att.-Gen. 
r. Corp. of London, 2 Macn. & Gord. 1. A denial, under oath, of the rele- 
vancy of concealed passages will not be suflBcient. If the court ascertains 
that they might possibly refer to the questions at issue, their production 
will be enforced : Caton v. Lewis, 22 L. J. Ch. 906 

' Where deeds are in the possession of the solicitor of two tenants in 
common, it was held that one of the tenants could not be compelled to 
produce them in a suit to which the other tenant was not a party : Edmonds 
r. Foley, 30 Beav. 282. 



80 ADAMS's DOCTRINE OF EQUITY. 

a document be in the joint possession of the defendant 
and of some other person who is not before the Court, its 
production will not be compelled : and that for two reasons; 
one, that a party will not be ordered to do that which he 
cannot, or may not be able to do; the other, that another 
r*l '^l *person not present has an interest in the docu- 
ment, which the Court cannot deal with.(y^)^ The 
result is the same if he holds the documents in his sole 
possession, but on the joint account of himself and of 
other persons, who are not before the Court. But, if his 
possession is on his own account only, and he owes no 
duty to such other persons, the mere fact that the docu- 
ments are important to their interests will not prevent 
their production. («y 

The documents must be of such a character as to con- 
stitute proper matters of discovery within the ordinary 
rules, viz., they must not fall within any of the protected 
classes; and they must be material to the plaintiff's case. 
Their character on these points must be learnt from the 
answer. If the answer, by its want of distinct allegation, 
leave the right to protection doubtful, the omission may 
be supplied by affidavit; or, if part only of the document 
is entitled to protection, the defendant may seal up such 

[h) Taylor v. Kundell, Cr. & P. 104 ; Murray v. Walter, Cr. & P. 114 ; 
' [Morrell v. Wooten, 13 Beav. 105; Ford v. Dolphin, 1 Drew. 222; Chant v. 
Brown, 9 Hare 790 ; Penny v. Goode, 1 Drew. 474.] 

{{) Hercy v. Ferrers, 4 Bea. 97. 

^ Where possession of documents is admitted by two defendants, one of 
whom dies, production cannot be enforced in the absence of his represen- 
tatives: Robertson v. Shewell, 15 Beav. 277. See also Warwick v. Queen's 
College, L. R. 4 Eq. 254. 

^ A defendant cannot refuse to produce priva':e and confidential letters 
from a stranger, on the ground that the writers forbid their publication ; 
but the plaintiff will be put on an undertaking not to use them for any 
collateral object: Hopkinson v. Lord Burghley, L. R. 2 Ch. 447. 



OF DISCOVERY. 81 

parts as he shall swear by affidavit to be of a protected 
character. (^)^ If, however, the uncertainty be not 
remedied by affidavit, or if the answer contradict itself 
or be palpably incredible, production may be enforced, 
to ascertain the truth. (/)^ 

It will be observed that, in order to entitle the plaintiff 
to have a document produced, it is sufficient to show that 
it is material to his own case. His right will not be ex- 
cluded because it happens to be evidence for the defend- 
ant also, (w?)^ But if it be not relevant as affirmative 
evidence for himself, he will not be entitled to inspect his 

(Jt) Llewellyn v. Badeley, 1 Hare 527 ; Curd v. Curd, 1 Hare 274 ; 
[Robbins v. Davis, 1 Blatch. C. C. 238.] 

(Z) Bowes F. Fernie, 3 M. & C. 632; Latimer r. Neate, 11 Bligh 112; 4 
CI. & F. 570; Bannatyne c. Leader, 10 Sim. 230. 

(m) Burrell v. Nicholson, 1 M. & K. 680. 

^ If a plaintiff prays for an order on a defendant to produce books and 
papers, the Court may, as a condition precedent, require the plaintiff to 
undertake not to communicate the contents improperly. An injunction 
will lie to restrain him : O'Connor v. Tack, 2 Brews. (Pa.) 407. 

* For instances in which the Court refuses to compel the production of 
privileged documents, the student is referred to Enthoven r. Cobb, 5 De G. 
& Sm. 595 (aflBrmed on appeal), in 2 De G., M. & G. 632, and Reynolds v. 
Godlee, 4 K. & J. 88. In these instances the documents protected were 
cases stated, and opinions of counsel thereon. And the rule is the same 
where the defendant claims to resist discovery on the ground of being a 
purchaser for valuable consideration without notice: Hunt v. Elmes, 27 
Beav. 62. 

* Att.-Gen. c. Corp. of London, 2 Macn. & Gord. 247. The defendant in 
such case must distinctly negative the ground on which the plaintiff claims 
inspection of the document, in order to protect himself: Ibid. The de- 
fendant may also be compelled to set forth whether he has not made certain 
allegations of title, though not whether those allegations are true, or of the 
nature of that title ; and may be compelled to set forth a schedule of all 
documents relating to the matter: Potter v. Waller, 2 De Gex & Sm. 410. 
It seems that the defendant cannot protect himself from discovery, on the 
ground of disclosing the evidence of his title, where his only allegation of 
title is negativing that of the p aintiff: Att.-Gen. r. Corp. of London, 2 
Macn. & Gord. 247. 

6 



82 ADAMS's DOCTRINE OF EQUITY. 

adversary's evidence, merely because on inspection it may 
prove defective, (w) It is otherwise if the bill alleges 
r*ie-i a ^specific defect^ in the defendant's title, and 
charges that the documents will prove the existence 
of that defect. Such a charge will entitle the plaintiff 
to discovery, to the extent of a positive allegation in the 
answer that they will not afford such proof. And if the 
answer be doubtful, he is entitled to production, (o) The 
same principle seems applicable where the bill seeks to 
impeach a document, and alleges that its invalidity would 
appear by inspection. In such a case inspection, before 
the hearing, would probably be permitted, unless the 
answer satisfactorily displaced the charge. (/?) 

K the possession and character of the documents are 
sufficiently admitted, the next step is to order their pro- 
duction ; and unless some ground can be shown for re- 
fusing it, an order for that purpose is almost of course.^ 
It has indeed been contended to be of absolute right in 
respect of the maxim that "he who answers at all must 
answer fully," and it has been argued that, in accordance 
with the maxim, wherever the possession and character 
of the documents are admitted, no denial by answer of 

(n) Bolton v. Corporation of Liverpool, 3 Sim. 467 ; 1 M. & K. 88 ; 
Llewellyn v. Badeley, 1 Hare 527. 

(o) Smith V. Beaufort, 1 Hare 507 ; 1 Ph. 209 ; Coombe v. Corporation 
of London, 1 N. C. C. 631. 

(p) Kennedy v. Green, 6 Sim. 7; Wigr. on Discovery, s. 311. 

•^ The petition for an order of production must designate, with reasonable 
•certainty, the books and papers called for : Williams v. Williams, 1 Maryl. 
'Ch. Dec. 201 ; Williams v. Savage Man. Co., 3 Id. 306. The defendant, 
though treated as plaintiff's agent, has no right to be present at the in- 
spection of the documents : Bartley v. Bartley, 1 Drewry 233. 

The general rule is that the defendant's books in daily use are to be 
produced at his place of business : Mertens v. Haigh, Johns. 735. 



OF DISCOVERY. 83 

the plaintiff's equity, however full and explicit, will ex- 
cuse from production. This view, however, seems to be 
incorrect; for although the fitness of production, so far 
as it depends on the character of the documents, is de- 
termined on the same principles as if the bill had asked 
that they should be incorporated with the answer, yet it 
does not follow that an objection to discover their con^ 
tents must be taken in both cases in the same technical 
form. The thing demanded is the same in both, but the 
form of demand is different, and so also may be the form 
of resisting that demand. In the case which we are now 
considering the only thing asked is a descriptive schedule ; 
the answer gives the schedule ; and is a full answer ac- 
cording to the requirements of the bill. If the contents 

had been asked *for, the defendant might have ^ ^ 

r*171 
been compelled to plead, and might have adopted ^ -• 

that course to avoid the technical rule. But there is no 
such requisition in the bill ; and therefore, if the plain- 
tiff's equity be effectually displaced by the answer, the 
mere technical rule that an answer must be full, does not 
apply to the production of documents. (5-)^ 

{q) Adams v. Fisher, 3 M. & C. 526 ; Wigr. on Discovery, s. 148-185 ; 
Lancaster v. Evors, 1 Ph. 349. 

^ Where discovery is sought in relation to matters in which the plaintiff 
has no interest, except consequential or resulting from a character or title 
denied by the answer, and not otherwise appearing on the record, the 
plaintiff has no equity entitling him to the discovery. But, if the plaintiff's 
interest in the discovery sought results from a character and a title alleged 
in the bill, and if the bill properly avers that the discovery will establish 
that character and title, and also establish a case of fraud by the defendant, 
in destroying or withholding the plaintiff's remedies, the defendant cannot 
withhold discovery by generally denying the character and title claimed 
by the bill : Stainton v. Chadwick, 3 Macn. & Gord. 575. It seems that a 
defendant cannot protect himself from discovery, on the ground of its dis- 
closing the evidence of his title, where his only allegation of title is a 



84 ADAMS's DOCTRINE OF EQUITY. 

A defendant may also in some cases bind himself by 
the frame of his answer to produce a document, which is 
evidence of his own title alone, and which does not con- 
tain, nor is alleged to contain, any evidence of the plain- 
tiff's case. A mere reference to the document as existing, 
and as constituting a portion of his own evidence, will not 
expose him to this liability; but if he professes to set out 
its contents, or to give an abstract of it, referring for veri- 
fication to the document itself, he will be considered to 
have made it substantially a part of his answer ; and if 
he admits possession, will be bound to produce it, in order 
that the plaintiff may ascertain that it is correctly stated, (r) 

(r) Hardman v. Ellames, 2 M. & K. 732; Latimer v. Neate, 11 Bligh, 
112; Adams v. Fisher, 3 M. & C. 526, 548 ; Att.-Gen. v. Lambe, 3 Y & C. 
171 ; Phillips V. Evans, 3 N. C. C. 647 ; Wigr. on Discovery, s. 385, 424. 

negativing that of the plaintiff: Att.-Gen. v. Corp. of London, 2 Macn. & 
Gord. 247. But if the plaintiff's title is denied, and the answer states 
positively that the documents in the defendant's custody relating to matters 
in the bill veill not show that title, the Court will not order their produc- 
tion ; so, even if he merely states that he is advised and believes that they 
will not show the plaintiff's title : Peile v. Stoddart, 1 Macn. & Gord. 192. 
In Goodall v. Little, 1 Sim. N. S. 155, however, where there was a denial 
of the plaintiff's title in the bill, and the answer, admitting the possession 
of certain documents, denied that these documents would show the facts 
to be as the plaintiff alleged them, the Court ordered the production of the 
documents, on the ground that they might form material links in the chain 
of proof. And in Swinborne v. Nelson, 22 L. J. (N. S.) Ch. 331, dis- 
covery was enforced, notwithstanding an express denial of the plaintiff's 
title in the answer. The general language of Adams v. Fisher, which is 
cited as the authority for the doctrine in the text, was said not to be in 
accordance with " a long line of authorities before decided in this Court," 
and inconsistent with the principles of equity pleading ; and it was sup- 
posed that the case in question was intended only to apply to cases where 
the discovery would not assist the plaintiff in making out his title to the 
relief sought. 

There is no distinction, in the rule to be applied in this matter, between 
ordinary discovery and the production of documents : Swinborne v. Nelson, 
ut sup. 



OF DISCOVERY 85 

The right of enforcing discovery on oath is confined to 
the plaintiff in the cause. If the defendant wishes on his 
part, to obtain discovery, he must constitute himself a 
plain tiflf by filing a cross-bill, and will be entitled in his 
turn to an answer on oath, so soon as he has answered the 
original bill.^ If, however, the plaintiff's title be made 
out by documents, the production of which is material for 
making out the defence, the right of filing a cross-bill 
would obviously afford no adequate aid to the defendant; 
because it would not enable him to see the documents, 
until after his own answer had been filed. It appears that 
under such circumstances the court cannot compel the 
plaintiff to produce the documents, but if he states the 
*alleged document to be in his possession, may ex- r-^^ q-, 
cuse the defendant from answering until it is done. 

The leading case on this doctrine is one where a bill 
was filed against executors, praying payment of two pro- 
missory notes given by the testator for securing 15,000/. 

' When defendant seeks the discovery of books and papers in the pos- 
session of the plaintiff, he should file a cross-bill : Bogert v. Bogert, 2 Edw. 
Ch. 399, See also as to cases in which it is proper to file cross-bills : White 
V. Buloid, 2 Paige Ch. 164 ; Cloud v. Hamilton, 3 Yerg. 81 ; Tarleton r. 
Vietes, 1 Gilm. 470-; Josey v. Rogers, 13 Geo. 478. A cross-bill is 
merely a defence, and cannot be the foundation of a decree concerning 
matters not embraced in the original writ : Gallatian v. Erwin, Ilopk. 48 ; 
Draper v. Gordon, 4 Sandf. Ch. 210; Gallatian v. Cunningham, 8 Cowen 
361, 8. c. ; Field v. Schieffelin, 7 John. Ch. 252 ; May v. Armstrong, 3 
J. J. Marsh. 262. See remarks of Kent, Ch., as to cros8;-bill8, in Field v. 
Schieffelin, 7 John. Ch. 252. Time for answering may be enlarged for 
the purpose of bringing in a cross-bill : Josey v. Rogers, 13 Geo. 478 ; 
Primmer v. Patten, 32 Illinois 528. The Rules of Equity Practice adopted 
by tae Supreme Court of Pennsylvania in 1865 provide that specific inter- 
rogatories to the defendants shall not be included in the bill, but shall be 
filed separately (Rule 39), and that cross-bills for discovery only shall not 
be allowed, but the defendant shall be at liberty instead thereof to file 
interrogatories to the plaintiff (Rule 41). A similar rule as to cross-bills 
had been previously adopted in England by statute 15 & 16 Vic. c.86, 1 19. 



86 ADAMS's DOCTRINE OF EQUITY. 

One of the executors made an affidavit that he had in- 
spected the first note, and had observed on the face of it, 
circumstances tending to impeach its authenticity ; that 
he was informed and believed that the second note had 
been produced by the plaintiff for payment in a foreign 
country ; and that he was advised and believed it was 
necessary, in order that his answer might fully meet the 
case, that he should, before answer, have inspection of 
such second note. It was ordered that the defendants 
should not be compelled to answer, till a fortnight after 
the production of the second note. For the purpose how- 
ever of obtaining such production, it will not be sufficient 
to allege that it may be material to the defence. But the 
circumstances which constitute the materiality must be 
so stated by affidavit, that the court may estimate the 
alleged necessity, and may be satisfied that it is not need- 
lessly compelling a production. The validity of the doc- 
trine is still uncertain. It has been said by a Judge of 
great experience, that he never understood the reasoning 
on which it proceeded, whilst another has expressed his 
conviction that it is founded on principles, which upon 
examination would fully support it.(s)^ 

The jurisdiction of the Greal Seal for enforcing dis- 
covery is available in aid of proceedings for civil relief, 
whether such relief be asked from the Court of Chancery, 

or from another public tribunal in this country which is 
j» 

(«) Princess of Wales v. Lord Liverpool, 1 Sw. 1 14 ; Taylor v. Heming, 
4 Bea. 235 ; Milligan v. Mitchell, 6 Sim. 180 ; Penfold v. Nunn, 5 Sim. 
405 ; Bate v. Bate, 7 Bea. 528. 

^ To entitle a plaintiff in a cross-bill to a stay of proceedings in the 
original bill, until the cross-bill has been answered, the cross-bill must be 
sworn to positively, either by the plaintiff, or by the person from whom 
his information is derived: Talmage v. Pell, 9 Paige Ch. 410; Whiter. 
Buloid, 2 Paige 164. 



OF DISCOVERT. 87 

itself unable to enforce disco v^ery.^ But discovery will 
not be enforced to aid a proceeding before arbitrators, or 
before an inferior court. And it has also been refused in 
regard *to proceedings in the Ecclesiastical Court, p^-. g-. 
But the true reason in this latter case is that it is 
not wanted, for the Ecclesiastical Cgurt itself can compel 
an answer. Discovery has been enforced in one instance 
to aid the jurisdiction of a foreign Court ; but the pro- 
priety of such enforcements seems open to doubt. (^)^ 

In order to entitle himself to such discovery, the plain- 
tiff must show a title to sue the defendant in some other 
Court, or that he is actually involved in litigation with 
the defendant, or is liable to be so, and must also show 
that the discovery prayed is material to support or defend 
the suit. K he does not show this, he shows no title to 
the discovery, (w)^ And therefore, when a bill was filed 

[t) Mitf. 53, 186, 225 ; Earl of Derby r. Duke of Athol, 1 Ves. Sen. 202, 
205 ; Bent r. Young, 9 Sim. 185. 
(u) Mitf. 191. 

^ March v. Davison, 9 Paige 580 ; Lane v. Stebbins, Id. 622 ; Atlantic 
Ins. Co. p. Lunar, 1 Sandf. Ch. 91. But a discovery will not be allowed 
merely to guard against anticipated perjury in a suit at law : Leggett v. 
Postley, 2 Paige 599, Whether a court will sustain a bill of discovery 
merely to procure such admissions as might be used in mitigation of dam- 
ages, quceref Gelston v. Hoyt, 1 John. Ch. 543. 

* In New York, it has been decided that a bill of discovery will be sus- 
tained to aid the prosecution or defence of a cItU suit in a foreign tribu- 
nal : Mitchell v. Smith, 1 Paige 287. 

' Baxter v. Farmer, 7 Ired. Eq. 239 ; Turner v. Dickerson, 1 Stock. Ch. 
140. Thus a bill will not lie for the production of title papers, under 
which the plaintiff claims title, merely on the ground that they may be 
useful in some future action : Baxter r. Farmer. Where one has an inter- 
est in the common law suit of such a kind as makes him in effect a party, 
though he is not named as a party, a bill for discovery will lie against 
him : Carter i". Jordan, 15 Geo. 76. Where a demand for a discovery is 
merely colorable the court will refuse to take jurisdiction : Jones v. 
Bradshaw,'16 Gratt. (Va.) 355. 



88 ADAMS's DOCTRINE OF EQUITY. 

for discovery in aid of an action at law, which the plaintiff 
alleged by his bill that he intended to commence, the Court 
being of opinion that the case stated would not support 
an action, allowed a demurrer to the bill, (f ) Where the 
plaintiff alleges in his bill a sufficient case at law, it has 
been doubted to what extent discovery can be resisted, 
by pleading matters which would be a defence at law.^ In 
a case of Hindman v. Taylor, before Lord Thurlow, it was 
said that where the bill was for discovery leading to relief 
at law, the defendant could not plead matter in bar to the 
discovery which would be a bar to the relief there. The 
proposition, however, thus widely expressed, does not 
seem consistent with later decisions. And the true prin- 
ciple appears to be that, if "the legal defence is of a char- 
acter showing that the discovery would have no bearing 
on the issue at law, it will be a sufficient answer to the 
bill. If the legal defence is not of this character, but the 
trial at law will be of the general merits, the discovery 
will be enforced. (2^;)^ 

{v) Mitf. 187. 

[w) Hindman v. Taylor, 2 B.C. C. 7 ; Robertson v. Lubbock, 4 Sim. 
161, 172 ; Scott V. Broadwood, 2 Coll. 447 ; Hare on Discovery 47-60. 

^ As a general rule, when a complainant is entitled to relief, he is also 
entitled to a discovery of the facts upon which his right to relief is based : 
Metier v. Metier, 4 Green (N. J.) 457. 

" Leggett V. Postley, 2 Paige 599 ; March v. Davison, 9 Paige 580; Lane 
V. Stebbins, Id. 622 ; Deas v. Harvie, 2 Barb. Ch. 448 ; Seymour v. 
Seymour, 4 Johns. Ch. 409 ; Lucas v. The Bank of Darien, 2 Stewart 
280 ; Bailey v. Dean, 5 Barb. S. C. 297 ; Gelston v. Hoyt, 1 John. Ch. 
543. 

Where a bill seeks for discovery alone, and not for relief also, the de- 
fendant will be compelled to make discovery, if the court suppose that it 
can in any way be material to the plaintiff, in support or defence of any 
suit: Peck v. Ashley, 12 Met. 478. But see Leggett v. Postley, 2 Paige 
569. And a bill of discovery to obtain evidence which might have 
been useful in a trial at law, must be filed pending the suit at law, unless 



OP DISCOVERY. 89 

*A bill thus filed for enforcing discovery in aid r*orj-i 
of proceedings before some other tribunal is called 
a bill for discovery, in contradistinction to those bills on 
which the consequent relief is attainable in equity, and 
which are called bills for relief, or more correctly, for dis- 
covery and relief. If the relief be attainable in a different 
Court, the mere fact that the discovery is requisite will 
not alter the jurisdiction. The Court of Chancery will 
enforce the discovery, but the relief must be sought before 
the appropriate tribunal.^ 

some sufficient excuse is shown why it was not filed at that time : Faulk- 
ner's Adm'x V. Harwood, 6 Randolph 125 ; and see Foltz v. Pourie & Daw- 
son, 2 Dessau. 40 ; 3 Miss. 433. After a verdict or judgment at law a party 
comes too late with a bill of discovery : Duncan v. Lyon, 3 John. Ch. 355, 
402 ; Foltz V. Pourie & Dawson, 2 Dessau. 40 ; Cowman v. Kingsland, 4 Edw. 
Ch. 627. But if equity has concurrent jurisdiction, in such case, and the 
defendant neglect to interpose the objection by demurrer, and answers on 
the merits, the jurisdiction wiil be sustained, notwithstanding a judgment 
at law : Endicott v. Penny, 14 Sm. & Marsh. 144. 

It seems that it is not necessary to state particularly the pleadings at 
law, 80 as to show what precise issues are pending : Hinkle v. Currin, 1 
Humph. (Tenn.) 74. 

The joinder of defendants in separate actions or of separate suits at law 
in the same bill of discovery, is inadmissible : Broadbent r. State, 7 Maryl. 
416 ; MacDougald v. Maddox, 17 Geo. 52. 

^ A bill for discovery alone may be maintained, in a case where, if it had 
been for relief also, it would have been demurrable ; as on a bill in aid of 
a plea of illegal consideration, in a suit at law on a bond : Benyon v. Net- 
tlefold, 3 Macn. & Gord. 94 ; Manning v. Drake, 1 Mann. (Mich.) 34. A 
bill for discovery in aid of an action, must show affirmatively that the 
plaintiflT's right cannot be established at law, without aid of the discovery 
which he seeks : Stacy v. Pearson & Bobbitt, 3 Rich. Eq. 148 ; Merchants' 
Bank ». Davis, 3 Kelley 112; Williams v. Harden, 1 Barb. Ch. 298 ; Nor- 
wich, &c., R. R. Co. V. Storey, 17 Conn. 364 ; Lindsley v. James, 3 Cold. 
(Tenn.) 477 ; though in Peck ». Ashley, 12 Met. 478, it was held that 
discovery toay be enforced notwithstanding the absence of such allega- 
tion, where the court can suppose that it would be in any way material 
in support or defence of an action. But a bill will lie not only where 
the plaintiflF is destitute of other evidence, but also to aid or render it 



90 ADAMS's DOCTRINE OF EQUITY. 

The discovery obtained by a bill in equity is only 
available against the answering defendant.^ It cannot be 
read as evidence against a co-defendant, unless he refers 
to it by his answer as correct, or is so connected with the 
answering party as to be bound, under the ordinary rules 



unnecessary : Stacy v. Pearson & Bobbitt, 3 Rich. Eq. 148 ; though see 
Bell V. Pomeroy, 4 McLean 57. It is no answer to such bill, to say 
that the facts can be proved by other witnesses, if they are incompetent 
by reason of interest: Bell v. Pomeroy. 

In England, the modern rule is, that as to matters not originally within 
the cognisance of equity, and where there is adequate remedy at law, a 
bill for discovery merely, can alone be sustained ; and that if the bill fur- 
ther pray relief, special or general, the whole is demurrable : Story, Eq. 
Jur. I 69, 70 ; Equity Plead. | 312 ; Foley v. Hill, 2 H. L. Cas. 37. But 
in the United States, a more convenient and reasonable doctrine generally 
obtains in such cases, and where the discovery is effectual, the court will 
go on and give the adequate relief, if in its power, to prevent a multiplicity 
of suits ; unless where there is a pending action : Story Eq. Jur. ^ 71 ; 
Brooks V. Stolley, 3 McLean 523 ; Warner v. Daniels, 1 Wood. & Min. 90 ; 
Traip v. Gould, 15 Maine 82 ; Lyons v. Miller, 6 Gratt. 438 ; Sims v. 
Aughtery, 4 Strob. Eq. 121 ; Holmes v. Holmes, 36 Verm. 525 ; but in New 
Jersey this rule has not been adopted. See Little v. Cooper, 2 Stockt. 273. 
If, however, a jury is necessary to determine the extent of the relief, dis- 
covery will be enforced, and the case then sent to law : Lynch v. Sumrall, 

1 A. K. Marsh. 468. In a bill for discovery, the general prayer " for such 
other and further relief as equity and good conscience may require," &c., 
is referrable only to the main purpose of the bill — discovery : Williams v. 
Row, 12 P. F. Smith 118. 

^ As a general rule, the answer of one defendant cannot be used as evi- 
dence against his co-defendant : Leeds v. Marine Ins. Co. of Alexandria, 

2 Wheaton 380 ; Osborne v. Bank of United States, 9 Id. 738 ; Van 
Reimsdyk w. Kane, 1 Gallis. 630; Robinson v. Sampson, 23 Maine 388; 
Cannon v. Norton, 14 Verm. 178; Conner v. Chase, 15 Id. 764; Grant 
V. U. S. Bank, 1 C. C. E. 112 ; Phoenix v. Ingraham, 5 John. 412 ; Pettit v. 
Jennings, 2 Rob. (Va.) 676 ; Holloway v. Moore, 4 S. & M. 594 ; Felch v. 
Hooper, 20 Maine 159; Singleton v. Gayle, 8 Porter 270; Webb v. 
Pell, 3 Paige Ch. 368 ; Judd v. Seaver, 8 Id. 548 ; Dykers v. Wilder, 

3 Edw. Ch. 496 ; Hayward v. Carroll, 4 Har. & J. 518 ; Stewart v. 
Stone, 3 Gill & J. 510; Calwell v. Boyer, 8 Id. 136; and in numerous 
other cases. 



OF DISCOVERY. 91 

of law, by his declarations or admissions, (ar) If there- 
fore a bill is filed for relief, no person can be made a party 
who is unaffected by the relief, notwithstanding he might 
give important discovery, because, as against himself, dis- 
covery is needless, and as against the other parties, it 
would be unavailing. In like manner, if the bill be for 
discovery alone, no persoa can be made a defendant who 
is not a party to the record at law. There is an excep- 
tion however in the case of suits against corporations ; and 
in such suits it is allowable to join the officers or members 
personally as defendants, in order that they may give dis- 
covery on oath, which the corporate body cannot do.(^)^ 
As against the defendant himself, if he be not under 
incapacity, the answer is evidence. If the plaintiff does 
not reply to it, and thus give him an opportunity of veri- 
fication by evidence, the whole answer must be taken as 
true.^ If a replication be filed, the answer is not evidence 
in the defendant's favor, but the plaintiff may use 
*any portion of it, without admitting the remainder p^n-. -, 
to be read, except so far as it is explanatory of 
the portion used. (0) The defendant, however, is so far 

(x) Mitf. 188 ; Anon., 1 P. W. 301 ; Chenret v. Jones, 6 Mad. 267 ; Crosse 
r. Bedingfield, 12 Sim. 35 ; Green v. Pledger, 3 Hare 165. 

(y) Mitf. 188 ; Kerr v. Rew, 5 M. & C. 154 ; Glasscott v. Copperminers' 
Company, 11 Sim. 305, 314. 

(z) Bartlefct v. Gillard, 3 Russ. 149, 156 ; Freeman v. Tatham, 5 Hare 
329 ; East v. East, 5 Hare 343 ; [see Glenn v. Randall, 2 Maryl. Oh. 220.] 

' Lindsey v. James, 3 Cold. (Tenn.) 477. 

'Fant V. Miller, 17 Gratt. (Va.) 187. This does not apply where an 
answer under oath is waived : Tomlinson v. Lindley, 2 Carter (Ind.) 569. 
Where the bill calls for answer not under oath, the jurat of the answer 
will be stricken out, and the answer considered as not sworn to : Sweet r. 
Parker, 22 X. J. Eq. 453. Where the plaintiflF calls on the defendant 
to answer the allegations of the bill he makes defendant a witness for that 
purpose and for no other : Eaton's Appeal, 16 P. F. Smith 483 ; see also, 
Hart r. Freeman, 42 Ala. 567. 



92 ADAMS's DOCTRINE OF EQUITY. 

entitled to the benefit of his answer, that any material 
suggestion made by it, though not established by proof 
may, at the discretion of the Court, be referred for 
inquiry, (a) And if a positive denial in the answer be met 
by the evidence of one witness only, the Court will neither 
make a decree, nor send the question to a trial at law.^ 
If there are corroborative circumstances in the plaintiff's 
favor, the Court will depart from this rule, and will either 
make an immediate decree, or, if the defendant desire it, 
will direct an issue, ordering his answer to be read as 
evidence on the trial, so that it may be contrasted with 
the testimony given against him. (J) The defendant's 
answer may also be read on the question of costs ; and the 
Court, though compelled by the evidence to make a decree 
against him, may give credit to his statement on oath as 
to his own conduct, so far as to exempt him from payment 
of costs. But it has been held that where a tender is 
relied on by the defendant, the mere unproved statement 

(a) Connop v. Hayward, 1 N. C. C. 33 ; McMahon v. Burchell, 2 Ph. 
127. 

(6) East India Company v. Donald, 9 Ves. 275 ; Savage v. Brocksopp, 
18 Ves. 335. 

^ When the facts alleged in the complainant's bill are denied in the an- 
swer, it is a general principle' that they must be proved by two credible 
witnesses, or one witness and strong corroborating circumstances : Swift 
V. Dean, 6 Johns. 523 ; Clason v. Morris, 10 Id. 524 ; Atkinson v. Manks, 
1 Cow. 691 ; Staflford v. Bryan, 1 Paige Ch. 239 ; Chance r. Teeple, 3 
Green Ch, 173 ; McDowell v. Bank of Wilmington and Brandywine, 1 Har- 
ring. 369 ; Beatty v. Smith & Thompson, 2 Hen. & M. 395 ; Raines v. 
Jones, 4 Humph. 490 ; Coles v. Raymond, 5 Blackf. 435 ; Bibb v. Smith, 
1 Dana 580 ; Mason v. Peck, 7 J. J. Marsh. 300 ; Patterson v. Ilobbs, 1 
Lit. 275 ; Littel v. Mclver, 1 Bibb. 203 ; Paulling v. Sturgus, 3 Stewart 
95; Neale v. Ilagthrop, 3 Bland, 551 ; Hughes v. Blake, 6 Wheaton 453; 
Union Bank t>, Geary, 5 Pet. 99 ; Page v. Page, 8 N, H. 187 ; Daniel v. 
Mitchell, 1 Story 173 ; Myers v. Kenzie, 26 111. 36 ; White v. Hampton, 10 
Iowa 238 ; and many other cases. / 



OF DISCOVERY. 93 

that such tender has been made is not sufficient to save 
costs. Nor can the answer of a mortgagor he read against 
a mortgagee to deprive him, on the ground of misconduct, 
of his ordinary right to costs, (c) 

The rule which allows a plaintiff, who has replied to 
the answer, to read selected portions only, is necessarily 
confined to cases where the hearing is in equity. K the 
hill be for discovery in aid of a procedure at law, the 
answer is treated at law like any other admission, and 
must be read throughout, if it be read at all.^ The costs 
also of such an answer are subject to a different rule from 
those of an answer to a bill *for relief. In the r^nft-i 
one case the costs of discovery are a portion of 
the costs in the cause, and are disposed of in that charac- 
ter at the hearing. In the other, the defendant is entitled 
to costs as a matter of course, immediately on putting in 
a full answer, for the Court of Chancery never hears the 
cause ; and the Court which does hear it has no jurisdic- 
tion over the Chancery costs. 

This principle, which applies to bills for discovery in 
aid of a procedure at law, was, until lately, applied to 
cross-bills for discovery alone, when filed in aid of a de- 
fence in equity ; so that in a suit of this class the answer, 
if read at all, must have been read throughout, and the 
defendant, on filing it, was entitled to his costs. The 
practice, however, is now altered, and it is directed that 

(c) Howell V. George, 1 Mad. 1 ; Milnes r, Davidson, 3 Mad. 374 ; Wright 
r. Jones, C. P. Coop. 493. 

^Hartf. Freeman, 42 Alab. 567; Fant v. Miller, 17 Gratt. (Va.) 187. 
This rule also applies where, as in the United States generally, the court 
goes on to give relief on the ground of discovery, notwithstanding that 
there is adequate relief at law : Lyons v. Miller, 6 Gratt. 439 ; Holmes v. 
Holmes, 36 Verm. 525; ShotweU v. Smith, 20 N. J. Eq. 79. 



94 ADAMS's DOCTRINE OF EQUITY. 

the answer to a cross-bill for discovery only may be read 
and used in the same manner and under the same restric- 
tions as the answer to a bill praying relief, and that the 
costs of it shall be costs in the original cause, unless the 
Court otherwise orders, (c?) 

(d) 42(i Order of August, 1851 ; 125th Order of May, 1845. 



COMMISSIONS TO EXAMINE WITNESSES. 95 



*CHAPTER 11. [*23] 

ON COMMISSIONS TO EXAMINE WITNESSES ABROAD; OF PER- 
PETUATION OF TESTIMONY AND OF EXAMINATIONS DE BENE 
ESSE.^ 

In addition to the jurisdiction for discovery, there is 
another substantially similar to it, under which the Court 
of Chancery interposes for two objects : first, for the pro- 
curement of evidence to be used elsewhere, without itself 
deciding on the result, viz., in suits for a Commission to 
Examine Witnesses Abroad, and in suit to Perpetuate 
Testimony; and secondly, for granting, either in aid of 
its own proceedings or of a proceeding elsewhere, an 
examination of witnesses de bene esse. 

^ Courts of Chancery in the United States, and courts of law, exercising 
chancery powers, are in the constant practice of entertaining jurisdiction 
of bills for the perpetuation of testimony, issuing commissions for the ex- 
amination of witnesses abroad, and of permitting testimony to be taken de 
bene esse ; and it will be found, that generally the rules of practice are 
analogous to those of the English High Court of Chancery. See upon this 
subject Clark v. Bundy, 6 Paige 432 ; Brown v. Southworth et al., 9 Id. 
351 ; Lingan v. Henderson, 1 Bland 236 ; Jerome et al. v. Jerome, 5 Conn. 
352 ; In the matter of Isaac L. Kip, 1 Paige Ch. 601 ; Fort r. Ragusin, 
2 Johns. Ch. 146 ; Rockwell r. Folsom, 4 Id. 165 ; Renwick r. Renwick, 
10 Paige Ch. 420; Bush v. Vandenbergh, 1 Edw. Ch. 649; Phelps & 
SpaflFord v. Curtis, 1 Green Ch. 387 ; Stubbs v. Burwell, 2 Hen. & M. 536 ; 
Chapman c. Chapman, 4 Id. 426; Oliver v. Palmer, 11 Gill & J. 426; 
Kinchcloe v. Kincheloe, 11 Leigh 393; Gordon v. Watkins et al., 1 S. & 
M. Ch. 37 ; Story on Eq. Plead., Ch. Vll. ; Baxter v. Farmer, 7 Ired. Eq. 
239. 



96 ADAMS's DOCTRINE OF EQUITY. 

The jurisdiction for issuing Commissions to Examine 
Witnesses Abroad is sufficiently explained by its name. 
It originated in the incapacity of the common law courts 
to issue such commissions without the consent of 
both parties. That incapacity is removed by a recent 
statute ; but the jurisdiction of equity still continues, 
though its exercise- is less frequently re quired. («) 

The jurisdiction in suits to Perpetuate Testimony 
arises where the fact, to which the testimony relates, can- 
not be immediately investigated at law, e. g., where the 
person filing the bill has merely a future interest, or having 
an immediate interest, is himself in possession and not 
actually disturbed, though threatened by the defendant 
r*24-1 *^^^^ disturbance at a future time. (J) Under a 
late statute the jurisdiction has been extended ; 
and it has been enacted, that "any person who would, 
under the circumstances alleged by him to exist, become 
entitled upon the happening of any future event, to any 
honor, title, dignity, or office, or to any estate or interest 
in any property, real or personal, the right or claim to 
which cannot by him be brought to trial before the hap- 
pening of such event, shall be entitled to file a bill to 
perpetuate any testimony which may be material for es- 
tablishing such claim or right." (c) 

The jurisdiction to examine witnesses de bene esse is a 
jurisdiction for permitting evidence to be taken before the 
cause is regularly at issue, in cases where, from the age 
or illness of a witness, or from his being the only witness 

(a) 1 Wm. 4, c. 22, s. 4 ; Grinnell v. Cobb'old, 4 Sim. 546. 

(h) Mitf. 51 5 1 Mad. Ch. Practice 253 ; Dursley v. Fitzhardinge, 6 Ves. 
251 ; Angell v. Angell, 1 S. & S. 83. 

(c) Earl of Belfast v. Chichester, 2 J. & W. 439 ; Townshend Peerage 
Case, 10 "CI. & F. 289 ; 5 & 6 Vict. c. 69. 



COMMISSIONS TO EXAMINE WITNESSES. 97 

to an important fact, there is reason to apprehend that, 
before the regular opportunity arrives, material evidence 
may be lost. This is called an examination de bene esse; 
and the depositions taken under it can only be read, if the 
party seeking the benefit of them has used all diligence to 
examine in the ordinary course, but there has been a 
moral impossibility of his so doing, {d) The same course 
may be pursued where a similar danger exists in reference 
to an action at law; and a bill may be entertained for an 
auxiliary examination de bene esse, provided there be 
annexed to it an affidavit of the circumstances which 
render such examination necessary, (e) The principle on 
which this affidavit is required, where the matter is capa- 
ble of being immediately the subject of an action at law, 
seems to be that the bill tends to alter the ordinary 
course of the administration of justice, which ought not 
to be permitted on the bare allegation of a plaintiff. The 
same principle is applied, as *we shall hereafter r*of;"| 
see, where a bill is filed, in respect of an instru- 
ment on which an action at law would lie, alleging that it 
is destroyed or lost, or is in the defendant's custody, to 
obtain relief which, but for such circumstances, might be 
had at law. (/) 

The mode of taking the evidence, either under a com- 
mission to Examine Witnesses Abroad, or in a suit to 
Perpetuate Testimony, or in an examination de bene esse, 
is in all material points similar to that adopted in the 
ordinary examination in a cause. 

In a suit, however, to Perpetuate Testimony, the cause 

{d) Frere v. Green, 19 Ves. 320; Hope v. Hope, 3 Bea. 317; Mcintosh 
V. Great Western Railway, 1 Hare 328 ; Cann v. Cann, 1 P. W. 567. 
(e) Mitf. 52, 150; Angell v. Angell, 1 S. & S. 83. 
{f) Post. Re-execution of Lost Instruments. 



98 ADAMS's DOCTRINE OF EQUITY. 

does not proceed beyond the examination of the witnesses. 
When that has been completed it is considered at an end ; 
and the only remaining step is the publication of the evi- 
dence. This is effected by an order of the Court; but 
such an order cannot be obtained except for the purpose 
of a suit or action, nor even for that purpose during the 
lifetime of the witnesses, unless on special grounds, show- 
ing that their examination is morally impossible. (^)^ 

The same principle applies to depositions taken de bene 
esse; and their publication cannot be obtained, unless the 
witness dies or is otherwise incapacitated from giving his 
evidence before issue is joined. 

If the evidence is required for the purpose of a trial at 
law, the order made is that the depositions be published, 
and that the officer attend with and produce to the Court 
of law the record of the whole proceedings ; and that the 
parties may make such use of the same as by law they 
can.(/i) It has been determined that it is no objection to 
the publication of depositions which have been taken in a 
suit to Perpetuate Testimony, that the proceedings for 
which they are required are in the Court of a foreign 
country. (^) 

{g) Morrison v. Arnold, 19 Ves. 670 ; [Barnsdale v. Lo-we, 2 Russ. & M. 
142.] 

(A) Attorney-General v. Ray, 2 Hare 518. ♦ 

(i) Morris v. Morris, 2 Ph. 205. 

^ A bill to perpetuate testimony, also differs from an ordinary bill, in 
that it cannot be dismissed for want of prosecution ; the only order that 
can be made is to compel the plaintiff to proceed in a given time or pay 
the costs : Beavan r. Carpenter, 11 Sim, 22; Wright v. Tatham, 2 Sim. 
459. 






BOOK II. 



OF THE JURISDICTION OF THE COURTS OF EQUITY, IN CASES 
IN WHICH THE COURTS OF ORDINARY JURISDICTION CAN- 
NOT ENFORCE A RIGHT. 



*CHAPTEIl I. [*26] 

OF TRUSTS, BOTH ORDINARY AND CHARITABLE. 

The jurisdiction of equity to grant relief originates, as 
we have seen, in the occasional inadequacy of the remedy 
at law; and the instances in which this inadequacy occurs, 
may be conveniently divided under two heads, viz., 1. 
Where the Courts of ordinary jurisdiction cannot enforce 
a right; and 2. Where they cannot administer it. 

It has been already stated in the Introduction, that the 
equities under the first head of this division, viz., where 
the Courts of ordinary jurisdiction cannot enforce a right, 
are those for performance of trusts and contracts, for elec- 
tion between inconsistent benefits, for completion of gifts 
on meritorious consideration in favor of the donor's inten- 
tion after his death, for giving effect to discharges by 
matter in pats of contracts under seal, for relief against 
penalties and forfeited mortgages, for re-execution or cor- 
rection of instruments which have been lost or erroneously 



100 ADAMS's DOCTRINE OF EQUITY. 

framed, for rescission of transactions which are illegal or 
fraudulent, or which have been carried on in ignorance or 
mistake of material facts, and for injunction against irre- 
parable torts. 

The jurisdiction to enforce performance of trusts arises 
where property has been conferred upon, and accepted 
by, one person, on the terms of using it for the benefit of 
r*971 *^^<^^^^^- The former person or owner at law, is 
called the trustee ; the latter, or owner in equity, 
the cestui que trust. 

The principal advantage of a conveyance on trust is, 
that it enables the owners of property to effectuate dis- 
positions of a more complex character than is consistent 
with the machinery of conveyances at law ; and that it 
also affords the means of protecting infants and other in- 
capacitated persons, by vesting their property in trust- 
worthy holders, who manage and apply it for their benefit. 
It is, on the other hand, attended with some inconvenience 
and risk, because it makes the cestui que trust's security in 
some degree dependent on a trustee who has no beneficial 
interest, and may enable a fraudulent trustee, by concealing 
his fiduciary character, to sell the property to a stranger. 

The distinction between a trustee's legal ownership, and^ 
the beneficial interest of a cestui que trust, is in some in- 
stances recognised even at law ; and where the trust is 
created by will, the character of its duties and the nature 
of the estate required for their performance are allowed 
to effect the construction of the devise, in reference both 
to its passing any estate, and also in reference to the ex- 
tent and duration of the estate passed. («) But, in so far 
as a legal , ownership is conferred, it invests the trustee 

[a) 2 Jarm. on Wills 196 ; Adams on Ejectment, 4th ed., 60-65. 



ORDINARY AND CHARITABLE TRUSTS. 101 

with absolute dominion at law, and the equitable owner- 
ship, or right to compel performance of his trust, is only 
cognisable in the Court of Chancery.^ 

In order to originate a trust, two things are essential : 
first, that the ownership conferred be coupled with a trust, 
either declared by the parties or resulting by presumption 
of law; and secondly, that it be accepted on those terms 
by the trustee. 

The declaration of a trust by the parties is not, inde- 
pendently of the Statute of Frauds, required to be made 
or evidenced in any particular way. And therefore, pre- 
viously *to that statute, a trust, whether of real or ^ 
personal property, might be declared either by ^ J 
deed, by writing not under seal, or by mere word of 
mouth, subject, however, to the ordinary rule of law that, 
if an instrument in writing existed, it could not be ex- 
plained or contradicted by parol evidence. 

With respect, however, to real estate, the rule is altered 
by the Statute of Frauds, and it is enacted, "that all 
declarations or creations of trusts or confidences of any 
lands, tenements, or hereditaments, shall be manifested 
and proved by some writing, signed by the party who is 
by law enabled to declare such trust, or by his last will 
in writing; or else they shall be utterly void and of no 
eff'ect." And further, that "all grants and assignments 
of any trust or confidence shall likewise be in writing, 
signed by the party granting or assigning the same, or by 
such last will or devise."^ It will be observed that this 

^ The common law rule still exists as to personalty : Martin v. Greer, 1 
Geo. Decis. 109; Lord v. Lowry, 1 Bailey's Ch. 510; Rice ».' Burnett, 
Spears Ch. 579 ; Gordon v. Green, 10 Geo. 534. 

* This provision is in force in most of the United States. See Hill on 
Trustees 56, note; Brinnan v. Brinnan, 3 Green (N. J.) 212; Gibson r. 
Foote, 40 Miss. 788. When the fact that the trust was created by parol 



102 ADAMS's DOCTRINE OF EQUITY. * 

act does not require that the trust shall be declared in 
writing, but only that it shall be manifested and proved 
by writing.^ And therefore, if the existence of a trust, 
together with its precise terms and subject-matter, can 
be proved from any subsequent acknowledgment, written 
and signed by the trustee, as by a letter, memorandum, 
or recital in a deed, it will be sufficient. (J)^ 

(6) 29 Car. 2, c. 3, ss. 7 & 9 ; Gardner v. Rowe, 2 S. & S. 346 ; 5 Russ. 
258. 

only, appears upon the face of the bill, it may be taken advantage of by 
demurrer; where it does not so appear the Statute of Frauds must be set 
up by a plea or in the answer. See Hill on Trustees, 61, note. 

^ The distinction alluded to in the text has this practical importance, 
viz. : that the commencement of the estate of the cestui que trust will not 
date merely from the execution of the writing by which it is proved, but 
will relate back to the time of its original creation. Thus where a parol 
declaration of trust is made in favor of one who afterwards dies, and the 
trust is after his death declared in writing, the written declaration will be 
referred back to the date of the parol creation so as to bring the subject of 
the trust within the scope of the cestui que trusfs will : Ambrose v. Am- 
brose, 1 P. Wms. 322. Rights of bond Jide purchasers without notice are 
of course protected, and the distinction noticed above has been held, after 
some fluctuation in opinion, not to apply to post-nuptial settlements made 
in pursuance of ante-nuptial parol agreements. See Hill on Trustees, page 
57, note 1. In Maine, Massachusetts, and some other states, trusts must 
be "created and declared" in writing: Hill on Trustees, page 56, note. 
See also, Movan v. Hays, 1 Johns. Ch. 339 ; Johnson v. Ronald, 4 Munf. 
77 ; Jackson v. Moore, 6 Cowen 706 ; Flagg v. Mann, 2 Sumn. 486 ; Pinney 
V. Fellows, 15 Verm. 525 ; 2 Story's Eq., sec. 972. The instrument creating 
the trust need not be executed by the cestui que trust: Skipwith's Extr. v. 
Cunningham, 8 Leigh 271. 

* Any writing, no matter how informal, which declares what the trust is, 
will satisfy the requirements of the statute : Smith v. Matthews, 3 De G. 
F. & J. 139 ; Orleans v. Chatham, 2 Pick. 29 ; Hardin u. Baird, 6 Litt. 346 ; 
Graham v. Lambert, 5 Humph. 595 ; Gomez v. The Tradesman's Bank, 4 
Sand. S. €. 106 ; Wright v. Douglass, 3 Selden 564 ; Bragg v. Paulk, 42 
Maine 502 ; Maxwell v. Whieldon's Adm'r., 10 Cush. 221 ; Massey v. Mas" 
sey, 20 Tex. 134. Where the existence of a trust is shown by writing, 
parol evidence may, it seems, be let in to show its terms : Reid v. Reid, 
12 Rich. (S. C.) Eq. 213. See, however, Cook v. Barr, 44 N. Y. 156, and 
Duffy V. Masterton, Id. 557. See also, Fisher v. Fields, 10 Johns. 495 ; 



ORDINARY AND CHARITABLE TRUSTS. 103 

With respect to personal estate, including moneys out 
on mortgage, the original rule continues, and it is suffi- 
cient that, either by writing or by word of mouth, there 
should be a certain declaration of the trust, (c) 

The intention thus evidenced, whether by writing or by 
parol, to impose a trust on the donee, must be declared 
with certainty; and there must also be a certain declara- 
tion of its terras, Adz., of the property on which the trust 
is to attach, the parties for whom the benefit is meant, 
and the ^interests which they are respectively to rHcoq-i 
take.^ If there be uncertainty in this latter respect, 
but it be sufficiently certain that a trust was meant, and 
not a gift for the donee's benefit, the case will fall under 
a different rule, and there will be a resulting trust for the 
donor by operation of law. 

The certainty, however, of a trust is not necessarily 

(c) Benbow v. Townsend, 1 M. & K. 596 ; McFadden r. Jenkjns, 1 Hare 
458 ; 1 Ph. 153. 

Orleans v. Chatham, 2 Pick. 29 ; Dale ». Hamilton, 2 Phil. 266 ; Maccub- 
bin F. Cromwell, 7 Gill & Johns. 157 ; Steere v. Steere, 5 Johns. Ch. 1 ; 
Unitarian Soc. v. Woodbury, 2 Shepley 281 ; Walraven v. Lord, 2 Patt. & 
H, 547 ; Bankhead's Trust, 2 Kay & John. 560; Ex parte Boyd, 3 Jurist 
N. S. 897 ; Pinney v. Fellows, 15 Verm. 525 ; Menude v. Delaire, 2 Dessaus. 
564; Rutledge v. Smith, 1 McC. Ch. 119; Elliott v. Morris, 1 Harp. 
Eq. 281 ; Fleming et al. v. Donahoe et al., 5 Hammond 256 ; Harrison v. 
Mennomy, 2 Edw. Ch. 251 ; Slocum v. Marshall, 2 Wash. C. C. 398. 

^ Slocum V. Marshall, 2 Wash. C. C. 398 ; Steere v. Steere, 5 Johns. Ch. 
1 ; Dorsey v. Clarke, 4 H. & Johns. 551 ; Mercer v. Stark, 1 Sm. & Marsh. 
Ch. 479 ; Knight v. Boughton, 11 CI. & Fin. 513 ; Briggs ». Penny, 3 Macn. 
& Gord. 546 ; Williams v. Williams, 1 Sim. N. S. 358 ; Smith v. Matthews, 
3 De G., F. & J. 139. Besides the three requisites enumerated in the text^ 
a fourth has been added by recent English authorities ; certainty in the 
manner in which the trust is to be performed : Knight v. Boughton, ut 
sup. ; Reeves v. Baker, 18 Bear. 372 ; and this, it was said in the latter 
case, may be referred partly to the subject-matter, and partly to the object 
of the trust, and reduced to one or other of them. The mere use of the 
words " trust" or " trustee " will not necessarily create a trust: Brown v. 
Combs, 5 Dutch. 36 ; Hill on Trustees 65, note. 



104 ADAMS's DOCTRINE OF EQUITY. 

affected by the circumstance that it has been declared in 
the form of a power, enabling the trustee to give the estate 
to the parties interested, instead of an immediate gift to 
them : nor by the use of precatory or recommendatory 
words, instead of more imperative language. And on the 
other hand, a trust is not necessarily created, because the 
formal language of a trust is used, if a contrary intent 
appear from the gift.^ 

The creation of trusts in the form of powers occurs 
where no positive direction is given that the trustee shall 
hold for the parties interested, but he is authorized to 
give them an interest, if he see fit. Such a power as this 
does not necessarily constitute a trust; for it may be 
absolutely discretionary in the donee, and one which he 
cannot be compelled to execute ; but on the other hand, 
it may be given him in a different character, and as one 
which he is intrusted and bound to execute. If the con- 
text of the gift establish this latter construction, he has 
not a discretion whether he will execute his power or not, 
but if he neglect his duty, the Court will, to a certain 
extent, discharge it in his stead. It will not, however, in 
so doing, assume an arbitrary discretion, although such a 
discretion may have been given to the trustee, but it will 
adopt such general maxim as under the circumstances 
appears applicable, e. g., that a fund given for the benefit 
of " relations" shall be distributed among those who are 
within the Statute of Distributions, although the donee 
might have selected out of a wider class. The leading 
case on this subject is one where leaseholds were be- 
queathed to a man, with a direction to make certain 
payments out of the rents : and the testator *em- 
L -• powered him to employ the residue for such of his 

» Richardson v. Inglesby, 13 Rich. (S. C.) Eq. 59. 



ORDINARY AND CHARITABLE TRUSTS. 105 

nephew's children as he should think proper. On the 
trustee's failure so to employ the residue, it was decreed 
to be a trust for all the children.^ There is another class 
of cases, apparently similar to these, but based on an 
entirely distinct principle, where a non-compulsory power 
of appointment has been conferred, but the context has 
implied a gift in default of appointment to the persons 
who in the event of execution would have been objects 
of the power. Such, for instance, is a gift to children and 
their issue in such proportions as A. shall appoint, under 
which it has been held that in default of appointment the 
children took by implication estates tail. The distinction 
between the two cases is, that in the one the objects of 
the power take, notwithstanding the trustee's failure to 
appoint, because his failure was a neglect of duty ; in the 
other they take, not because he was bound to appoint, 
but because it is adjudged, on perusal of the gift, that an 
express trust was by mistake or carelessness omitted, (c?)^ 

(d) Brown v. Higgs, 8 Ves. 561 ; Grant v. Lynman, 4 Russ. 292; Bur- 
roughs V. Philcox, 5 M. & C. 73 ; 2 Sug. on Powers, 7th ed. 157. 

^ See accordingly, Withers v. Yeadon, 1 Rich. Eq. 324 ; Collins v. Car- 
lisle, 7 B. Monr. 13 ; Gibbs v. Marsh, 2 Metcalf 243 ; Miller v. Meetch, 8 
Penn. St. 417; Whitehurst v. Harker, 2 Ired. Eq. 292 ; Penny v. Turner, 
2 Phillips 493. Where the class is ascertained, the rule of division by the 
court is, of course, equality. 

* A good illustration of the rule of distribution which obtains in default 
of an execution of a power by a donee in trust, will be found in the case 
of Salusbury v. Denton, 3 K. & J. 529. There a testator gave a fund to 
his widow, to be disposed of by her as to part to a charity, and as to the 
remainder among such relations as she should select ; and the widow died 
without making any disposition of the fund. It was held that the charity 
was entitled to one moiety, and that the other should be divided among 
the parties entitled under the Statute of Distributions. See, also, White's 
Trusts, Johnson 656; Fordyce v. Bridges, 2 Phill. 497, and Brook v. 
Brook, 3 Sm. & Giff. 280. In Smith v. Bowen, 35 New York 83, there 
was a devise " to my beloved wife, Martha, to be used and disposed of at 
her discretion, for the benefit of herself and my three daughters;" and it 
was held that the words gave one-fourth to the wife absolutely, and, as to 



106 ADAMS's DOCTRINE OF EQUITY. 

The use of precatory or recommendatory words, whether 
arising from want of due consideration, or from an unwil- 
lingness to use language implying distrust, or from an in- 
tention to give a control over the suggested disposition, is 
not unfrequent in. wills; and we often meet with such 
expressions as " I recommend," " I entreat," or " I de- 
sire " that such a thing be done, or " I have no doubt, or 
well know," that it will be done.^ In these cases the 
mere grammatical construction of the words is not suffi- 
cient to determine whether a trust exists. It is clear 
that words simply intimating an expectation, provided 
their object be expressed with sufficient certainty, may 
operate as imperative on the person to whom they are 
addressed. But although they may create a trust, yet 
they have not necessarily that effect. They are in them- 
selves of a flexible character, and must give way if the 
p;j;o-|-| imperative construction *be inconsistent with any 
positive provision in the will, or if it appear from 
the general context that the testator meant to depend on 
the justice or gratitude of the donee. The question, 
therefore, in each particular case is merely of construc- 
tion on the terms of the instrument, (e)^ 

(e) Wright v. Atkyns, 17 Ves. 255 ; 19 Ves. 299 ; Shaw v. Lawless, 1 
Lloyd & Goold, 558 ; 5 CI. & F. 129 ; Knight v. Boughton, 11 CI. & F. 513 ; 
Knott V. Cottee, 2 Ph. 192 ; 2 Sug. on Pow. 171. 

the other three-fourths, created a trust in favor of the daughters, which 
under the statute in New York, was turned into a power in trust. But 
although a trust will sometimes be created in spite of the failure of the 
donee of the power to exercise his discretion, yet In re Eddowes, 1 Dr. & 
Sm. 395, shows that where there is nothing to point out with certainty in 
whose favor, or in what shares a gift was intended in default of the execu- 
tion of the power, no trust can be implied. 

^ " Having confidence," Dresser v. Dresser, 46 Maine 48 ; " Wish and 
will," McRee's Adm'r. v. Means, 34 Alab. 349. 

^ There has been some fluctuation in the modern English authorities, on 



ORDINARY AND CHARITABLE TRUSTS. 107 

The non-creation of a trust in the donee notwithstand- 
ing that a trust is formally declared, occurs principally in 
conveyances for payment of debts, where the language 
used, if taken in its literal acceptation, would constitute 
the creditors cestuis que trustent, and would entitle them 
to enforce an application of the fund. It has been de- 
cided, however, that, notwithstanding the similarity of 

the subject of precatory trusts, and two classes of cases have consequently 
arisen, one leaning in favor of aflFecting the conscience of the donee with a 
trust by the use of recommendatory words, the other having an opposite 
tendency. Of the former class, instances will be found in Bernard v. 
Minshull, Johnson 276 ; Shovelton v. Shovelton, 32 Beav. 143 ; Gully v. 
Cregoe, 24 Id. 185 •, Ward v. Grey, 26 Id. 485 ; Proby v. Landor, 28 Id. 
504 ; Liddard v. Liddard, 28 Id. 266 ; Brook's Will, 34 L. J. Ch. 616 ; and 
Constable v. Bull, 3 De G. & Sm. 411 ; while for examples of the latter 
class the reader may refer to Briggs v. Penny, 3 Macn. & G. 546 ; John- 
ston V. Rowlands, 2 De G. & Sm. 356 ; Webb v. Wools, 2 Sim. N. S. 267 ; 
Reeves v. Baker, 18 Beav. 372, and Hood v. Oglander, 34 L. J. Ch. 528 ; 
Eaton V. Watts, 5 Eq. L. R. 151. The former class probably includes the 
more recent and better considered decisions. See, also, the remarks in 
Hawkins on Wills, page 160. 

In the United States, also, it is impossible to reconcile all the authori- 
ties. The rule in Pennsylvania is that precatory expressions in a will are 
not, primd facie, sufficient to create a trust: Pennock's Estate, 20 Penna. 
St. 268 ; Walker v. Hall, 34 Id. 483 ; Kinter v. Jenks, 43 Id. 445, and Jaur- 
etche V. Proctor, 48 Id. 466; Second Church v. Disbrow, 52 Id. 219; 
Burt V. Ilerron, 66 Id. 400 ; Van Duyne v. Van Duyne, 1 McCarter (N. J.) 
397 ; and so in Connecticut: Gilbert v. Chapin, 19 Conn. 351, where the 
earlier case of Bull v. Bull, 8 Conn. 47, was disapproved ; though even in 
that state mere discretion in regard to the selection of the objects or the 
distribution of the subject of a devise is not inconsistent with a trust ; and 
see Harper v. Phelps, 21 Conn. 257. See, also, Ellis v. Ellis, 15 Alab. 
296. But a more liberal doctrine as to precatory words has been held in 
Erickson v. Willard, 1 N. H. 217 ; Lucas v. Lockhart, 10 Sm. & Marsh. 
466 ; Collins v. Carlisle, 7 B. Mon. 14; Harrison v. Harrison, 2 Gratt. 1 ; 
McRee's Adm'r. v. Means, 34 Alab. 349, and Dresser v. Dresser, 46 Maine 
48 ; Warner v. Bates, 98 Mass. 274 ; Cook v. Ellington, 6 Jones Eq. (N. 
C.) 371. The student will find this subject discussed in the notes to Hard- 
ing V. Glyn, 2 Lead. Cas. in Eq. 789. 



108 ADAMS's DOCTRINE OF EQUITY. 

form, the transaction is substantially different from the 
creation of a trust ; and that a man who, without com- 
munication with his creditors, puts property into the 
hands of a trustee for the purpose of paying his debts, 
proposes only a benefit to himself, and not to his cred- 
itors. The nominal trustee, therefore, is merely his agent; 
and the nominal trust is only a method of applying his 
own property for his own convenience. (/)^ 

{/) Garrard v. Lord Lauderdale, 3 Sim. 1 ; Bill v. Cureton, 2 M. & K. 
503; Hughes v. Stubbs, 1 Hare 476 ; Gibbs ». Glamis, 11 Sim. 584; Wild- 
ing V. Richards, 1 Coll. 655 ; [Simmonds v. Palles, 2 Johnes & Lat. 489 ; 
Smith V. Keating, 6 C. B. (60 E. C. L. R.) 136.] 

^ The distinction taken in the text, and for which Garrard v. Lord Lau- 
derdale is the leading authority, between a voluntary assignment for cred- 
itors and an ordinary trust, is very important in its results ; for, if it be 
sound, the assignment before it is acted on constitutes merely a power in 
the trustee, revocable at pleasure, invalid against general creditors, and 
not enforceable in equity by those who are provided for thereby. Some 
of the more recent cases, however, seem to indicate that if the trust be 
communicated to the creditors it will cease to be revocable, though not 
executed by them ; at any rate, such is the case where the trustee has also 
taken possession of the property : Griffiths v. Ricketts, 7 Hare 307 ; Har- 
land V. Binks, 15 Q. B. (69 E. C. L. R.) 713 ; Smith v. Hurst, 10 Hare 30 ; 
Acton V. Woodgate, 2 Myl. & K. 495. Where there is an actual execution 
by the creditors, the trust becomes irrevocable : Mackinnon v. Stewart, 1 
Sim. N. S. 76 ; see Synnot v. Simpson, 5 H. L. Cas. 121 ; Montefiori v. 
Browne, 7 Ibid. 241 ; Whitmore v. Turquand, 1 Johns. & H. 444 

In the United States, such assignments, before the assent of the benefi- 
ciaries, have, in some cases, been treated as mere naked powers : Brooks 
V. Marbury, 11 Wheat. 78; Watson v. Bagaley, 12 Penna. St. 164; yet 
the general current of authority is clear, that the creditors, on learning of 
the existence of the trust deed, may proceed at once to enforce it in equity, 
before becoming formally parties thereto ; Moses v. Murgatroyd, 1 Johns. 
Ch. 119 ; Shepherd v. McEvers, 4 Id. 136 ; Weir v. Tannehill, 2 Yerg. 57 ; 
Pearson v. Rockhill, 4 B. Monr. 296 ; Robertson v. Sublett, 6 Hump. 313 ; 
Ingram ». Kirkpatrick, 6 Ired. Ev. 463 ; Pratt v. Thornton, 28 Maine 355. 
See Burrill on Assignments 280, 306, for a discussion of this subject. 

Where a firm made a trust deed for the benefit of its creditors, which 
was duly registered, and afterwards made a second deed revoking the 



ORDINARY AND CHARITABLE TRUSTS. 109 

A resulting trust by presumption of law arises where 
the legal ownership of property has been disposed of, but 
it is apparent from the language of the disposition itself, 
or from the attendant circumstances, that the equitable 
ownership or beneficial interest was intended to go in a 
different channel, although there is no declaration, or no 
sujQficient declaration, as to what that channel should be. 
In this case a trust is implied for the real owner, termed 
a resulting trust, or trust by operation of law.^ And 
such a trnst, although relating to real estate, is exempted 
by a proviso in the Statute of Frauds from the necessity 
of being declared or evidenced in writing.^ The enact- 
ment is, that "where any conveyance shall be made of 
any lands or *tenements by which a trust or con- r*qo-i 
fidence shall or may arise or result by implication 
or construction of law, or be transferred or extinguished 
by act or operation of law, then and in every such case 
such trust or confidence shall be of the like force and 
effect as the same would have been if this statute had not 
been made."(y) 

{g) 29 Car. 2, c. 3, s. 8. 

first, it was held that the rights of the parties to the first deed became fixed 
and vested by its execution and registration, subject to the election of the 
beneficiaries as to whether they would accept or reject its provisions, and 
that the firm had no power to revoke it : Furman v. Fisher, 4 Cold. (Tenn.) 
626. 

^ It must be borne in mind that resulting trusts of this description arise 
only upon voluntary dispositions. Where there is a valuable consideration 
no trust will result so as to defeat the operation of the deed : Brown r. 
Jones, 1 Atk. 188. See also Ridout r. Dowding, 1 Atk.419; Hill on Trus- 
tees 179 ; Dennis r. McCagg. 32 111. 429. 

' Resulting trusts are not within the Statute of Frauds in the difierent 
states ; nor are they executed by the Statute of Uses. In some states, as 
in New York, Minnesota and Wisconsin, trusts of this description have 
been abolished, or confined within narrow limits. 



110 ADAMS's DOCTRINE OF EQUITY. 

Resulting trusts of the first class, viz., those where the 
intention to sever the legal and equitable ownership is 
apparent, either directly or indirectly, from the language 
of the gift, occur for the most part in dispositions by will. 
They are not necessarily restricted to such dispositions ; 
for whenever, in any conveyance or disposition of pro- 
perty, it is apparent that any beneficial interest was not 
intended to accompany the legal ownership, but no other 
sufficient and effectual gift of it has been made, it will 
result back to the original owner. But in gifts by deeds, 
which are generally made with full deliberation and under 
professional advice, this circumstance does not often 
occur. In gifts by will it is not unfrequent. 

In gifts of this class, the bequest of the beneficial in- 
terest is sometimes intentionally deferred ; as where pro- 
perty is devised to a trustee " upon trusts to be declared 
by a subsequent codicil," and no such declaration is made ; 
sometimes a trust is declared, but lapses by the death of 
the beneficial donee, or is invalidated by its uncertainty, 
by its illegal character, or by the refusal of the donee to 
accept the benefit ; and sometimes a partial trust is de- 
clared, e. g., for payment of debts, which does not exhaust 
the whole estate, and the surplus is left without any ex- 
press disposition. In this latter instance, it may appear 
by the context of the will, or by the aid of parol evi- 
dence, that the devisee was intended to take the surplus ; 
but the prima facie inference is, that the creation of the 
partial trust was the sole object, and that the equitable 
interest undisposed of is in the nature of a resulting trust.^ 

1 See Flint v. Warren, 16 Sim. 124 ; Onslow v. Wallis, 1 H. & Tw. 513 : 
Ralston v. Telfair, 2 Dev. Eq. 255 ; Huston b. Hamilton, 2 Binn. 387 *, King 
V. Mitchell, 8 Pet. 326 ; SheaflFer's App., 8 Barr 38 ; Ilawley v. James, 5 
Paige 323 ; Floyd v. Barker, 1 Id. 486 ; Frazier v. Frazier, 2 Leigh 642. 



ORDINARY AND CHARITABLE TRUSTS. Ill 

*In all cases of this kind, the rule of law is that r^oq-i 
the beneficial interest undisposed of results back to 
the original owner, or to his representatives, real or per- 
sonal, according to the nature of the property. 

If, for example, a testator devises land for purposes 
altogether illegal, or which altogether fail, the heir-at-law 
takes it as undisposed of. If the purposes are partially 
illegal or partially fail, or if they require the application 
of a part only of the land devised, the heir takes so much 
of the land or of its produce as was destined for the in- 
effective purpose, or so much as is not required for the 
purpose of the will. And c converso, if there be a be- 
quest of personal property for purposes which are alto- 
gether or partially illegal, or which altogether or partially 
fail, the next of kin are entitled to it, or to so much of it 
as cannot or need not be applied to the purposes of the 
wilL(^) 

Resulting trusts of the second class, viz., where the 
intention to sever the legal and equitable ownership is 
apparent from the attendant circumstances, occur where 
an estate has been purchased in the name of one person, 
and the purchase-money or consideration has proceeded 

(A) Collins V. Wakemann, 2 Ves. J. 683 ; Muckleston v. Brown, 6 Ves. 
52 ; Fowler v. Garlike, 1 R. & M. 232 ; Ackroyd v. Smithson, 1 B. C. C. 
503 ; King v. Denison, 1 Ves. & B. 260 ; Clark v. Hilton, L. R. 2 Eq. 814 ; 
Tregonwell v. Sydenham, 3 Dow. 194 ; Sidney v. Shelley, 19 Ves. 352 ; 
Cogan r. Stephens, Lewin on Trustees, Appendix vii ; 1 Jarm. on Wills, 
c. xviii ; Cook v. Hutchinson, 1 Keen 42, 50 ; Gordon t'. Atkinson, 1 De G. 
& Sm. 478 ; Taylor r. Taylor, 3 De G., Macn. & G. 190 ; see Barrs v. 
Fewkes, 2 Hem. & M. 60 ; 11 Jur. N. S. 669 ; Hill on Trustees 119, note ; 
Craig V. Leslie, 3 Wheat. 563 ; Burr v. Sim, 1 Whart. 263 ; SheaflFer's App. 
8 Penn. St. 42 ; King v. Mitchell, 8 Peters 326 ; Lindsay f. Pleasants, 4 
Ired. Eq. 320 ; Pratt r. Taliaferro, 3 Leigh 419 ; Wood v. Cone, 7 Paige 
472; Snowhill r. Snowhill, 1 'Green Ch. 30; Woodgate r. Fleet, 44 N. Y. 
1 ; Harrison v. Harrison, 36 N. Y. 543. Infra, Conversion. 



112 ADAMS's DOCTRINE OF EQUITY. 

from another. In this case the presumption of law is, 
that the party paying for the estate intended it for his 
own benefit, and that the nominal purchaser is a mere 
trustee.^ 

' It is a general principle, that where on a purchase of property, the 
conveyance of the legal estate is taken in the name of one person, but the 
purchase-money is paid or secured by another, at the same time or pre- 
viously, and as part of one transaction, and the parties are strangers, not 
in certain relations of blood, a trust results in favor of him who supplies 
the purchase-money : Buck v. Pike, 11 Maine 9 ; Boyd v. McLean, 1 John. 
Ch. 582 ; Jackman v. Ringland, 4 W. & S. 146 ; Livermore v. Aldrich, 
5 Cush, 435 ; Frederick v. Haas, 5 Nevada 389 ; Fleming v. McHall, 47 
111. 282 ; Dryden v. Hanway. 31 Md. 254 ; Millard v. Hathaway, 27 Cal. 
119 ; Mallory v. Mallory, 5 Bush (Ky.) 464, and a great number of other 
cases, many of which may be found cited in Hill on Trustees, 4 Am. ed. 
147, in note. 

It is also held in the United States, by analogy, that a purchase by a 
man in his own name, with funds in his hands in a fiduciary capacity, 
creates a resulting trust in favor of those whose money is thus employed ; 
as in the case of a trustee, a partner, an agent for purchase, an executor, 
a guardian, the committee of a lunatic, and the like : Philips v. Crammond, 
2 Wash. C. C. 441 ; Kirkpatrick v. McDonald, 11 Penn. St. 393 ; Baldwin 
V. Johnson, Saxton 441 j Smith v. Ramsey, 1 Gilm. 373 ; Pugh v. Currie, 

5 Alab. 446 ; Edgar v. Donnelly, 2 Munf. 387 ; Martin v. Creer, 1 Geo. 
Dec. 109; Freeman v. Kelley, 1 Hoff. Ch. 90; Moffitt v. McDonald, 11 
Humph. 457 ; Turner v. Petigrew, 6 Id. 438 ; Piatt v. Oliver, 2 McLean 
267 ; Smith v. Burnham, 3 Sumn. 435 ; Harrisburg Bank v. Tyler, 3 W. 

6 S. 373 ; Wilhelm v. Folmer, 6 Barr 296 ; McCrory v. Foster, 1 Clarke 
(la.) 271 ; Eshleman v. Lewis, 49 Penn. St. 410 ; Day v. Roth, 18 N. Y. 448 ; 
Wales V. Bogue, 31 111. 464; Harper v. Archer, 28 Miss. 212; Church v. 
Sterling, 16 Conn. 388 ; Hutchinson v. Hutchinson, 4 Dessausi 77 ; Follansbe 
V. Kilbreth, 17 111. 522 ; Bridenbecker v. Lowell, 32 Barb. 9 ; Pugh v. 
Pugh, 9 Ind. 132; Methodist Church v. Wood, 5 Hamm. 283; Garrett v. 
Garrett, 1 Strob. Eq. 96 ; Wallace v. Duflfield, 2 S. & R. 521 ; Claussen 
V. La Franz, 1 Clarke (la.) 226 ; Schaffner v. Grutzmacher, 6 Id. 137; 
Reid V. Fitch, 11 Barb. S. C. 399 ; Caplinger v. Stokes, Meigs 175 ; Coder 
V. Huling, 27 Penn. St. 84 ; Harper v. Archer, 28 Miss. 212 ; Baumgartner 
V. Guessfield, 38 Mo. 36; Johnson©. Dougherty, 3 Green (N. J.) 406; 
Harrold v. Lane, 53 Penn. St. 268 ; Beegle v. Wentz, 55 Penn. St. 369 ; Cecil 
Bank v. Snively, 23 Md. 253. So of a husband purchasing with his wife's 
separate property : Methodist Church r. Jaques, 1 John. Ch. 450 ; 3 Id. 77 ; 



ORDINARY AND CHARITABLE TRUSTS. 113 

This presumption exists in all cases where the convey- 
ance of a legal estate is made to one who has not really 



Brooks V. Dent, 1 Md. Ch. 523 ; Dickinson v. Codwise, 1 Sandf. Ch. 214 ; 
Pinney v. Fellows, 15 Verm. 525 ; Barron v. Barron, 24 Id. 375 ; Prichard 
15. Wallace, 4 Sneed 405 ; Resor v. Resor, 9 Ind. 347 ; Miller v. Blackburn, 
14 Ind. 62; Lathrop v. Gilbert, 2 Stockt. 344; Filman v. Divers, 31 Penn. 
St. 429 ; Kline's Appeal, 39 Id. 463. It is to be observed, however, that 
where such employment of fiduciary funds is unauthorized and wrongful 
in itself, the parties affected thereby are not confined to the mere enforce- 
ment of a resulting trust in the property thus tortiously acquired, but may, 
instead thereof, elect to take the money back. See Oliver v. Piatt, 3 How. 
U. S. 333 ; Bonsall's Appeal, 1 Rawle 266. Indeed, under such circum- 
stances, where the investment of the money is manifestly hostile to the 
original trust, it is even held in some English decisions, approved by Mr. 
Justice Gibson, in Wallace v. Duffield, 2 S. & R. 521 ; Harrisburg Bank 
V. Tyler, 3 W. & S. 373 ; and in Wallace v. McCullough, 1 Rich. Eq. 426, 
that no technical trust is created, and that the beneficiaries can only claim 
a lien for their money upon the property acquired, and a consequent de- 
cree for a sale. But this is contrary to the uniform current of authority 
in this country, as before stated ; and inconsistent in its practical applica- 
tion, with the cardinal rule, that no fiduciary can be permitted to profit by 
a violation of his duties. See note to Woollam v. Hearne, 2 Lead. Cas. 
in Eq. 404. 

The doctrines w^ith regard to the ordinary resulting trust, are applicable 
to personal as well as real estate, to choses in action, as stock and annuities, 
as well as in possession : Sidmouth v. Sidmouth, 2 Beav. 454 ; Ex parte 
Houghton, 17 Ves. 253 ; but not, it has been held, to property perishable 
in its nature : Union Bank v. Baker, 8 Humph. 447. 

They are also applicable where the purchase-money is paid by several 
jointly, and the legal estate taken in the name of one only : Botsford v. 
Burr, 2 John. Ch. 405 ; Pierce v. Pierce, 7 B. Monr. 433 ; Stewart v. Brown, 
2 S. &R. 461; Shoemaker v. Smith, 11 Humph. 81; Powell v. Manu- 
facturing Co., 3 Mason 347 ; Purdy v. Purdy, 3 Md. Ch. 547 ; Letcher 
V. Letcher, 4 J. J. Marsh. 590 ; Buck v. Swazey, 35 Maine 41 ; but where 
it was agreed verbally that any one of three persons should buy in and 
hold for the others, and one bought and paid the purchase-money, it was 
held that there was no resulting trust : Farnhara v. Clements, 51 Maine 
426 ; Sheldon ». Sheldon, 3 Wis. 699 ; Morey v. Ilerrick. 18 Penn. St. 129 ; 
see also, Meason v. Kaine, 63 'Penn. St. 335. But the part of the pur- 
chase-money furnished by one who thus claims a resulting trust must 
be a definite one : Baker v. Vining, 30 Maine 121 ; Sayre r. Townseuds, 
8 



114 ADAMs's DOCTRINE OF EQUITY. 

jidv.'inced the price. And it is equally applicable whether 
Huch conveyance be in the name of a stranger only, with- 

15 Wond. 047. Though it has been held that the presumption was in 
the first instance, in such case, that the funds were supplied in equal 
pro[)<)rtionH by all : Shoenuikor v. Smith, 11 Humph. HI. 

In order to create a resulting trust, the money must have been actually 
paid by the alleged cestui que trtcst, out of his own or borrowed funds, or 
Boourod to bo paid at or before the time of the purchase, and cannot be 
raised by matter ex post facto : Botsford v. Burr, 2 John. Ch. 405 ; Steere 
V. Stocro, 5 Id. 1 ; Freeman v. Kelly, 1 Hofi'. Ch. DO; Rogers v. Murray, 3 
Paige ;{'.)(>; Foster v. Trustees, .'i Ala. 302; Mahorncr v. Harrison, 13 
Smedes & Marsh. 53 ; (jiravcB i'. Dugan, Dana 331 ; Magee v. Magee, 1 
Penn. St. 405 ; Pago v. Page, 8.N. H. 187 ; Brooks v. Fowle, 14 Id. 248 ; 
Conner v. Lewis, 16 Maine 208 ; Pinnock r. Clough, 10 Verm. 500 ; Haines 
f. O'Conner, 10 Watts 313; Gomez v. Tradesman's Bank, 4 Sandf. S. C. 
100; Buck »). Swazey, 35 Maine 41; Lynch v. Cox, 23 Penn. St. 205; 
Olive V. Dougherty, 3 Green (Iowa) 371 ; It-win v. Ivors, 7 Indiana 308 ; 
Whiting V. Gould, 2 Wis. 552; Barnard v. Jewett, 97 Mass. 87; Nixon's 
Appeal, 03 Ponn. St. 279. ' Land purchased with borrowed money does 
not raiso an im])lied trust in favor of the creditor: Gibson v. Foote, 40 Miss. 
788. The fund may, however, have been supplied by the nominal purchaser 
himself on credit : Pago v. Page, 8 N. II. 187; Kunnells v. Jackson, 1 
How. (Miss.) 358 ; Rogan v. Walker, I Wis. 527; Brooks v. Ellis, 3 Iowa 
527 ; but in such case the evidence must be very clear ; Kendall v. Mann, 
II Allen 15. 

Tlio facts from which a resulting trust is to be established, may be 
jiroved by parol, the case being excepted from the Statute of Frauds, though 
at the same time the evidence must bo clear and positive : Botsford v. 
Burr, 2 John. Ch. 405 ; Steere v. Steere, 5 Id. 1 ; Peebles v. Reading, 8 
S. it R. 4S4 ; Klliott v. Armstrong, 2 Blaokf. 194 ; Blair v. Bass, 4 Id. 
589 ; Pugh r. Bell, 1 J. J. Marsh. 403 ; Depeyster v. Gould, 2 Green Ch. 
474; Page r. Pago, 8 N. II. 187 ; Slocum r. Marshall, 2 Wash. C. C. 397 ; 
Knos V. Hunter, 4 Oilman 211 ; Carey v. Callan, B. Monr. 44, and many 
other eases. In England, it is very doubtful whether such evidence would 
bo admitted against the answer of the defendant, but it is held in the 
United States, generally, that it is so ; though it must be extremely clear, 
and is to bo rooeivod with the greatest caution : Boyd v. McLean, 1 John. 
Ch. 582 ; Botsford v. Burr, 2 Id. 405 ; Buck v. Pike, 2 Fairf. 24 ; Baker v. 
Vining, 30 Maine 121 ; Pago «. Pago, 8 N. H. 187 ; Snelling r. Utterback, 
1 Bibb 009 ; Lotoher v. Lotoher, 4 J. J. Marsh. 590 ; Elliott t\ Armstrong, 
.2 Blaokf. 198 ; Blair r. Bass, 4 Id. 640 ; Larkinsr. Rhodes, 5 Porter 196 ; 
Ensley v. Balontiuo, 4 Humph. 233 ; Faringer r. Ramsay, 2 Md. 365 ; 
Fausler v. Jones, 7 Ind. 277 ; AVhiting v. Gould, 2 Wis. 552; Osborne t\ 



ORDINARY AND CHARITABLE TRUSTS. 115 

out mention of the actual purchaser, or in the joint names 
of a stranger and the purchaser himself; whether the 

Endicott, 6 Cal. 149; Collins ». Smith, 18 111. 160; Hill on Trustees 96, 
note 2. Parol evidence is also admissible, though it may contradict the 
recital in the deed, that the consideration was paid by the nominal pur- 
chaser, at least during his lifetime : Hill on Trustees 95, note ; Livermore 
V. Aldrich, 5 Cush. 435, and ca«e8 there cited ; see also. Wolf r. Corby, 
30 Md. 356 ; Colton v. Wood, 25 Iowa 43 ; Groesbeck v. Seeley, 13 Mich. 
329 ; Hogan v. Jaques, 4 Green (N. J.) 123 ; and according to decisions in 
the United States, the question being unsettled in England, after his death 
also, though of course, in such case, the proof should be of the strongest 
character, as the protection of an answer is absent : Unitarian Society v. 
Woodbury, 14 Maine 281 ; Neill v. Keese, 5 Texas 23 ; Harder v. Harder, 
2 Sandf. Ch. 17 ; McCammon v. Petit, 3 Sneed 242. See Ilarrisburg Bank • 
V, Tyler, 3 W. & S. 373. For the purpose of establishing the fact of 
payment by the cestui que trustt, the declarations or admissions of the 
nominal purchaser to that effect are always competent : Malin v. Malin, I 
Wend. 02G; Pierce v. McKeehan, 3 Penn. St. 136; Harder v. Harder, 2 
Sandf. Ch. 17 ; Lloyd v. Carter, 17 Penn. St. 216 ; Peabody v. Tarbell, 2 
Cush. 232 ; Pinney v. Fellows, 15 Verm. 525 ; Barron v. Barron, 24 Id. 
375 ; but parol declarations that he had purchased or was about to pur- 
chase for another, without proof of some previous agreement, or advance 
of money, are obviously inadmissible, as they would go to establish not a 
resulting, but an express trust, in the teeth of the Statute of Frauds : Sidle 
V. Walters, 5 Watts 389 ; Haines v. O'Connor, 10 Id. 313 ; Blyholder v. 
Gilson, 18 Penn. St. 134 ; Smith r. Smith, 27 Id. 180. 

A promise to buy land at sherifTs sale is within the Statute of Frauds : 
Smith t\ Smith, 27 Penn. St. 180 ; Kellum v. Smith, 33 Id. 158 ; Gilberts. 
Carter, 10 Ind, 10. But it must be remembered that where a person at 
sheriff's sale makes declaration that he is buying on behalf of the defendant, 
and thereby prevents other persons from bidding, he will be held a trustee 
for the defendant : Brown v. Dysinger, 1 Rawle 448 ; Bethell v. Sharp, 25 
111. 173 ; Ryan ». Dox, 34 N. Y. 307 ; for an element of fraud exists in 
this last class of cases which does not obtain in the former. 

As a resulting trust may be created, so may it be rebutted, by parol evi- 
dence, either by way of direct contradiction of the alleged facts, or in proof 
of a different intention of the parties at the time, as that the nominal pur-' 
chaser was designed to be the real beneficiary : Botsford v. Burr, 2 John. 
Ch. 405; Page f. Pag«, « N- H. 189; Baker r. Vining, 30 Maine 126; 
Elliott V. Armstrong, 2 Blackf. 199; McGuire v. McGowen, 4 Dessaus. 487; 
Sewell V. Baxter, 2 Md. Ch. 448. Or that the party advancing the pur- 
chase-money, by the original agreement expressly stipulated for himself a 



116 ADAMS's DOCTRINE OF EQUITY. 

estate be originally conveyed to one purchaser out of 
ps^q^-i many, or *become ultimately vested in one as the 
survivor, under an assurance which has created a 
legal joint tenancy ; or whether in the case of several 
nominal purchasers, an immediate joint estate be given to 
all, or the grant be to take successively one after another. 
Whatever be the peculiar form in which the assurance is 



benefit from the transaction, inconsistent with the creation of a trust : Dow 
w. Jewell, 1 Foster 470. And so in general, where a different trust has 
been declared at the time in writing: Leggett v. Dubois, 5 Paige 114; 
Anstice v. Brown, 6 Id. 448 ; Clark v. Burnham, 2 Story 1 ; Mercer v. 
■ Stark, 1 S. & M. Ch. 479. 

Resulting trusts of this nature arise from the want of any consideration 
between the nominal purchaser and the person who supplies the purchase- 
money. Where, therefore, the parties are not strangers, but stand in that 
relation of blood, which supplies by itself, in equity, a good consideration 
for a conveyance, as in the case of a purchase by a parent in the name of 
a child, prima facie no trust results, but the transaction is treated as an 
advancement : Page v. Page, 8 N. H. 187 ; Jackson v. Matsdorf, 11 John. 
91 ; Partridge v. Havens, 10 Paige 618 ; Knouff v. Thompson, 16 Penn. 
St. 357 ; Dennison v. Goehring, 7 Id. 182, n. ; Taylor v. James, 4 Dessaus. 
6 ; Tremper v. Borton, 18 Ohio 418 ; Stanley v. Brennen, 6 Black. 194 ; 
Dudley v. Bosworth, 10 Humph. 12 ; Tebbetts v. Tilden, 11 Foster 273 : 
Rankin v. Harper, 23 Missouri 679. But this is a mere circumstance 
creating an adverse presumption, to rebut which, again, parol evidence is 
admissible: Jackson v. Matsdorf, 11 John. 91: Dudley i'. Bosworth, 10 
Humph. 12; Taylors. Taylor, 4 Gilm. 303; Tremper «. Barton, 18 Ohio 
418. And under all circumstances, where the conveyance is in fraud of 
creditors, a sufficient interest remains in the parent, to subject it in equity 
to the claim of his creditors : Kimmel v. McRight, 2 Penn. St. 38 ; Guthrie 
V. Gardner, 19 Wend. 414; Jencks v. Alexander, 11 Paige 619; Croft v. 
Arthur, 3 Dessaus. 223 ; Rucker v. Abell, 8 B. Monr. 566 ; Dunnien v. Coy, 
24 Missouri 167 ; Garfield v. Hatmaker, 15 N. Y. 476. 

It only remains to state that in some of the United States resulting trusts 
have been abolished, or exist only in certain cases and under certain re- 
strictions, specified and imposed by the statutes. Such is the case in New 
York, Minnesota, Wisconsin and other states. In regard to trusts of this 
description in the first mentioned state, see Lounsbury v. Purdy, 18 N. Y. 
515 ; Swinburn v. Swinburn, 28 Id. 568 ; Siemon v. Schurck, 29 Id. 
598 ; and Buffalo, &c., Railroad Co. v. Lampson, 47 Barb. 533. 



ORDINARY AND CHARITABLE TRUSTS. 117 

made, it does not affect the presumption that an estate or 
share of an estate, vested in a man who did not pay its 
price, was not intended by w^ay of beneficial ownership ; 
and therefore, in all those cases alike, if there be no evi- 
dence of an opposite intention, the trust of such legal 
estate will result to the parties who have advanced the 
purchase-money, in proportion to the amount of their 
respective advances. And as trusts of this kind are ex- 
pressly exempted from the Statute of Frauds, it is com- 
petent for the real purchaser to prove his payment of the 
purchase-money by parol evidence, even though it be 
otherwise expressed in the deed. 

The doctrine, however, is merely one of presumptive 
evidence. It is not a rule of law that a trust must be 
intended on such a purchase, but it is a reasonable pre- 
sumption, as a matter of evidence, in the absence of proof 
to the contrary. It is therefore open to the nominal pur- 
chaser to rebut that presumption by direct or circumstan- 
tial evidence to the contrary. He may, for instance, show 
that it was intended to give him the beneficial interest, 
either altogether or in part; that the purchase-money was 
advanced by way of loan to himself, and that the party 
advancing it intended to become his creditor, and not the 
equitable owner of the estate; or that the purchase-money, 
on a conveyance in joint tenancy, was advanced by the 
several purchasers in equal shares, so that there is no 
improbability of an estate in joint tenancy having been 
really contemplated, with equal chance of survivorship to 
all. In this manner a counter presumption inay be raised 
in opposition to the original one ; and this again in its 
turn may be met by other evidence of an opposite in- 
tention. Lastly, the evidence which is thus brought 
forward on either side may be derived either from con- 



118 ADAMS's DOCTRINE OF EQUITY. 

r;i:oc-] temporaneous declarations^ *or other direct proof 
of intention, or from the circumstances under 
which the transaction took place, or from the subsequent 
mode of treating the estate, and the length of time during 
which a particular mode of dealing with it has been adopted 
on all sides. («*) 

The most important class of cases in which, as an ordi- 
nary rule, this counter presumption arises, are those where 
a purchase has been made in the name of a child, or of 
one towards whom the party paying the money has placed 
himself in loco 'parentis. The general principle on w^iich 
this counter presumption proceeds is that, inasmuch as it 
is a father's duty to provide for his child, it is not impro- 
bable that he may make the provision by giving the child 
an estate, or by purchasing one for him in his name. And, 
therefore, if he does make a purchase in the child's name, 
i\iQ primd facie probability is that he intended it as a pro- 
vision or advancement. The doctrine on this point will 
be hereafter separately considered under the head of 
Meritorious Consideration. 

In accordance with the same principle it is held, that if 
land is acquired as the substratum of a partnership, or is 
brought into and used by the partnership for partnership 
purposes, there will be a trust by operation of law for the 
partnership, as tenants in common, although a trust may 
not have been declared in writing, and the ownership may 
not be apparently in all the members of the firm, or if in 
all, may apparently be in them, not as partners but as 
joint tenants, (^) 

(t) 3 Sug. V. & P. 275 ; Lloyd v. Spillett, 3 Atk. 150; Dyer v. Dyer, 2 
Cox 92; Rider v. Kidder, 10 Ves. 360; Aveling v. Knipe, 19 Id. 441; 
Wray v. Steele, 2 Ves. & B. 388 ; Vickers v. Cowell, 1 Bea. 529. 

[k) Dale v. Hamilton,' 5 Hare 369, 382; 2 Ph. 266. 

^ But not from subsequent declarations : Sidle v. Walters, 5 Watts 389 ; 
Hill on Trustees 94, note ; Bennett v. Fulmer, 49 Penn. St. 155. 



ORDINARY AND CHARITABLE TRUSTS. 119 

Another class of cases, in which the circumstances give 
rise to the presumption of a resulting trust, is where a 
man, whose duty it was to create a trust, has done an 
ambiguous act, and the Court construes such act as having 
been done in accordance with that duty. 

*If therefore a man is a trustee of certain funds rnco/^-i 
for investment in land, or has bound himself by 
covenant to lay out money in land, and he purchases an 
estate at a corresponding price, it will be presumed, inde- 
pendently of positive evidence, that his object in the 
investment was to effectuate the trust ; and a trust may 
be implied accordingly. But it will be observed that this 
is not as a hostile or compulsory decree, but on the sup- 
position that such a result was really contemplated ; and 
therefore if the contrary be proved, as by showing that 
the purchase was made under a mistaken opinion of the 
trust, the presumption cannot be raised. It is otherwise 
if the covenant be to settle such land as the covenantor 
may have on a specified day, or to purchase a specific 
estate, which he afterwards acquires ; for in these cases 
the trust attaches by virtue of the covenant, independently 
of any intention in the party bound. (^)^ 

{I) Tooke V. Hastings, 2 Vera. 97 ; Deacon v. Smith, 3 Atk. 323 ; Perry 
p. Phelips, 4 Ves. 108 ; Wellesley v. Wellesley, 10 Sim. 256; 4 M. & C. 561. 

' Besides that described in the text, there is another class of trusts 
"created by operation or implication of law," which are usually denomi- 
nated constructive trusts, and are of much importance and frequency. This 
class comprehends those cases where the holder of the legal estate in 
property cannot also enjoy the beneficial interest therein without violating 
some established principle of equity. The chief instance of this occurs 
when the property has been acquired by fraud, actual or constructive. As 
the leading doctrines on this subject will be found discussed in other parts 
of this volume, particularly under the head of Rescission and Cancellation 
(post. 174, foil.), it is sufiBcient to state here that where a party, actively or 
passively guilty of fraud, has thereby obtained the legal title, he is txeated 



120 ADAMs's DOCTRINE OF EQUITY. 

The second requisite to the creation of a trust is that 
the ownership be accepted on the proposed terms. The 
effect however of non-acceptance is not to invalidate the 
beneficial gift, but merely to free the non-accepting party 
from the liability to act. It is a settled principle in equity 
that a trust shall not fail for want of a trustee ; and, 
therefore, whether a trustee has been named, who after- 
wards refuses the trust ; whether, as is often the case in 
wills, no trustee be named, or it is doubtful who is the 

by equity in general as a mere trustee for the parties injured, and subjected 
to the consequent liabilities. The agency of constructive trust is also em- 
ployed, in cases where no fraud has been committed in the acquisition of 
the title, for the vindication or enforcement of other equitable principles. 
Thus, on an agreement for the sale of land, the vendor is, before actual 
conveyance, treated as trustee for the vendee. And, in cases of part per- 
formance of parol agreements for the sale of land by payment of purchase- 
money, the vendee acquires an equitable interest to the extent of the pur- 
chase-money paid: Rose v. Watson, 10 H. L. Ca. 672; Barnes' Appeal, 46 
Penn. St. 350. So of an encumbrancer, such as a mortgagee who has ob- 
tained a conveyance as security for the payment of money, and the money 
has been repaid. So, one to whom property is conveyed by a trustee with- 
out notice of the trust, but on no valuable consideration, or with actual or 
constructive notice, takes it subject to the original trusts. Many other 
similar instances might be put, but they all reduce themselves to the 
general principle that, wherever a man cannot hold property beneficially 
and for himself, except by fraud or in contravention of equity, he holds it 
as trustee for those who, in contemplation of equity, are entitled thereto. 

Constructive, like resulting, trusts are excepted out of the Statute of 
Frauds, and may therefore be proved by parol. The rules which are ap- 
plied to them, when established, are in general the same with those which 
govern direct trusts, but they are not in every respect identical. For in- 
stance, it is a fixed principle with regard to the latter that lapse of time, 
by itself, will not bar their enforcement, but in respect to the former the 
question of laches is a most material one, both with reference to their 
establishment and to the consequent relief which is given. Indeed, in 
some cases, the Statute of Limitations is directly followed. There are other 
distinctions, also, as to the privileges which trustees may claim, as to the 
fiduciary relationship of the parties, as to costs, and other matters which 
cannot be dwelt upon here, but which are fully considered in the text- 
books on the subject. 



ORDINARY AND CHARITABLE TRUSTS. 121 

proper trustee ; or whether, from any other cause, there 
be a failure of a regularly appointed trustee ; the Court 
of Chancery will see to the execution of the trust.^ it 
will ascertain in whom the legal ownership is vested, and 
will declare him a trustee for the purposes of the gift, or 
will nominate, if required, a trustee of its own, to whom 
the estate may be conveyed. And it is provided by a 
late statute that, if a trustee be a lunatic or infant, or if 
he be out of the jurisdiction of the Court, or if it be un- 
certain (*where there were several trustees) which r*o7-j 
was the survivor, or uncertain whether the trustee 
last known to have been seised, is living or dead, or, if 
dead, who is his heir, or if he refuse to convey when re- 
quired, the Lord Chancellor, in the case of lunacy, and 
the Court of Chancery, in the other cases, may substitute 
some person to make the conveyance, (w)^ 

(»0 11 Geo. 4, and 1 Wm. 4, c. 60. 

^ After the Court of Chancery has acquired jurisdiction by bill filed, it 
will not suffer any appointment or substitution of trustees, except with its 
sanction and control : Hill on Trustees 190, note. Under certain circum- 
stances, as where the fund is very large, the Court will not suffer the 
property to remain in the charge of one trustee, but will appoint another : 
Grant v. Grant, 34 L. J. Ch. 641. 

* Equity never suffers a trust to fiail on account of the neglect or refusal 
of the trustee to act, but if necessary will either appoint a new trustee, or 
treat the holder of the legal title as such : Shepherd v. McEvers, 4 John. 
Ch. 136; De Barante v. Gott. 6 Barb. S. C. 492; Crocheron r. Jacques, 3 
Edw. Ch. 207 ; King v. Donnelly, 5 Paige 46 ; Cushney v. Henry, 4 Paige 
345; McKennan r. Phillips, 6 Whart. 571 ; Dawson r. Dawson, Rice Eq. 
243 ; Lee v. Randolph, 2 Henn. & Munf. 12 ; Mclntire School r. Zan. Canal 
& M. C, 9 Hamm. 203 ; Griffith v. Griffith, 5 B. Monr. 113 ; Field r. Arrow- 
smith, 3 Humph. 442 ; Peter v. Beverly, 10 Peters 534 ; Furman t. Fisher, 
4 Cold. (Tenn.) 626. In some cases the appointment is made by a formal 
suit, in others by a petition simply. The circumstances which justify a 
resort to the latter method are of course the subject of special statutes in 
England and the various United States. As to the power of a court of 
chancery to appoint new trustees, and the occasions when that power is to 



122 ADAMS's DOCTRINE OF EQUITY. 

If, however, there is not merely a failure of the specific 
trustee, but the estate derived from the donor is at an 
end, and there is an owner holding by a paramount or 
adverse title, the trust ceases to bind. It is binding on 
the trustee himself if he accept it, and on any person 
claiming through or under him, except a purchaser for 
value without notice of the trust. And if he do not 



be exercised, see Hill on Trustees, p. 190-194, 4th Am. ed., where the 
American and Efiglish statutes are referred to. See, also, Morgan on 
Statutes and General Orders, pp. 58 to 123. A trustee is at liberty at any 
time before acceptance to disclaim or refuse the trust : Maccubin v. Crom- 
well, 7 Gill & John. 157 ; Trask v. Donoghue, 1 Aik. 370. It is always to 
be inferred, however, in the first instance, that a gift by deed or will is 
accepted by the donee : Wilt v. Franklin, 1 Binn. 502 ; Eyrick v. Hetrick, 
13 Penn. St. 494; Read v. Robinson, 6 W. & S. 331; 4 Kent Comm. 
500 ; and after the lapse of a great length of time, as twenty-five years, 
without disclaimer, the trustee having notice, acceptance of the trust may 
be presumed : Eyrick v. Hetrick, 13 Penn. St. 493 ; see Penny v. Davis, 3 
B. Monr. 314 ; Re Uniacke, 1 Jones & Lat. 1 .It is not necessary, in order 
to the acceptance of the trust, where created by deed, that there should be 
any execution thereof by the trustee, except so far as regards his legal lia- 
bility upon the covenants contained therein : Flint v. Clinton Co., 12 N. 
H. 432 ; but it will be presumed from any act in the management of the 
trust estate ; and the rule is the same as to trusts created by Avill : Flint 
V. Clinton Co. ub sup. ; Chaplin v. Givens, Rice Eq. 133 ; Latimer v. Han- 
son, 1 Bland 51 ; Maccubbin v. Cromwell, 7 G. & J. 157. Where the trus- 
tee is also executor, probate of the wiH is an acceptance as to personalty 
at least: Worth v. McAden, 1 Dev. & Batt. Eq. 207. Although in those 
states where security is required, he is held to have no power until qualifi- 
cation: Monroe V. James, 4 Munf. 195 ; Trask v. Donoghue, 1 Aik. (Verm.) 
373. Where one of several trustees disclaims, the trust estate devolves on 
the remainder : King v. Donnelly, 5 Paige 46 ; Trask v. Donoghue, 1 Aik. 
370 ; Putnam Free School v. Fisher, 30 Maine 523 ; Jones v. Mafi'et, 5 S. 
& R. 523 ; Taylor v. Galloway, I Hamm. 232. Where, however, there 
has once been acceptance, a trustee cannot afterwards, by any re- 
nunciation or disclaimer, rid himself of the duties of his office, except by 
consent of all parties, or by the intervention of a court of chancery : 
Shepherd v. McEvers, 4 John. Ch. 13G ; Cruger v. Halliday, 11 Paige 314 ; 
Latimer v. Hanson, 1 Bland 51 ; Chaplin v. Givens, 1 Rice Eq. 133; Drane 
». Gunter, 19 Alab. 731. 



ORDINARY AND CHARITABLE TRUSTS. 123 

accept it, it is in like manner binding on those who take 
in his stead under the donor. But it is not binding on 
an adverse claimant making title by a bond fide disseisin 
of the trustee ;^ nor was it, until a late statute, binding 
on the lord entitled by forfeiture or escheat. The pri- 
vilege of the lord by escheat is now excluded by statute ; 
and the Court is enabled to appoint new trustees, and to 
direct a conveyance by substitution to them, when a 
trustee dies without an heir, in like manner as when his 
heir is uncertain, {n) 

The acceptance of a trustee may be direct, by execu- 
tion of the trust deed, or by a statement that he accepts 
the trust ; or it may be implied from any act which shows 
an intention on his part to deal with the property, and to 
act in the execution of the duties imposed, (o)^ And in 
like manner his renunciation may be evidenced by his 
conduct, without an express declaration to that effect. 
But the more prudent course is to execute a deed of dis- 
claimer, ip) If, instead of a formal disclaimer, he execute 
an immediate release to his co-trustees for the mere pur- 
pose of disclaiming, *it seems doubtful whether r*qo-| 
such a release, although technically a dealing with 

(n) Gilbert on Uses, by Sag. 429 ; Burgess r. Wheate, 1 Eden 177 ; 
[Sweeting r. Sweeting, 33 L. J. Ch. 311 ;] Attorney -General v. Duke of 
Leeds, 2 M & K. 343 ; 4 & 5 Wm. 4, c. 23, ss. 2 and 3. [See Hill on Trus- 
tees, 4 Am. ed. 77, and notes.] 

(o) Urich V. Walker, 3 M. & C. 702 ; Kirwan v. Daniel, 5 Hare 493. 

{p) Stacey v. Elph, 1 M. & K. 195. [See Judson v. Gibbons, 5 Wend. 
224 ; Maccubbin v. Cromwell, 7 Gill & Johns. 165.] 

* See Stuyvesant v. Hale, 2 Barb. Ch. 151 ; Woods r. Farm ere, 7 Watts 
382. 

* As a general rule the acceptance of the trustee must be of the entire 
trust, and he cannot limit his responsibility to a particular portion. But 
there may be exceptions to this rule, of which an instance will be found 
in Malzy r. Edge, 2 Jurist N. S. 80. 



124 ADAMS's DOCTRINE OF EQUITY. 

the property, would be treated as an acceptance of the 
trust. (§') If the legal ownership has become vested in 
him, so that he cannot get rid of it by mere disclaimer, 
e. g., on a descent to him as heir, he must convey to a 
new trustee under, the sanction of the Court, but is not 
bound to do any further act.^ 

A trustee after acceptance cannot divest himself of his 
trust except in three ways, viz. : 1. By assent of all his 
cestuis que trust; 2. By means of some special power in 
the instrument creating the trust; and 3. By an appli- 
cation to the Court of Chancery.^ 

If all the cestuis que trust are of full age and free from 
disability, there is no difficulty on the subject ; for their 
sanction will necessarily secure the trustee. But if there 
are infants ov femes coverte interested, or if there is a trust 
for children not in esse, or if for any other reason the sanc- 
tion of all cannot be obtained, then the mere act of trans- 
fer would be a breach of trust; and therefore the trustee 
cannot, by his own act, relinquish his office, but would 
incur an additional liability for any misconduct on the 
part of his transferree. In order to meet this inconve- 

[q] Nicloson v. Wordsworth, 2 Swanst. 365 ; Urch v. Walker, 3 M. & C. 

702. 

' In the event of the death of the person nominated as trustee, before 
his acceptance, it appears doubtful whether the rightof disclaimer will fall 
to the ground, or will pass to the heir or personal representative. The 
point arose in Goodson v. Ellison, 3 Russ. 583, but was not decided. It 
would seem most reasonable to hold that the right to disclaim would pass 
to the heir or personal representative : Hill on Trustees, page 222. See, 
however, King v. Phillips, 16 Jur. 1080. 

^ Cruger et al. v. Halliday's Adm'x, 11 Paige 314 ; Jones v. Stockett, 2 
Bland 409 ; Shepherd v. McEvers, 4 John. Ch. 136. 

It is proper in this connection to add, that courts of equity, will in cases 
of fraud, negligence, incapacity to act, and breach of trust, remove the 
trustee : Chambers et al. v. Mauldin et al., 4 Ala. 477 ; Thompon v. Thomp- 
son, 2 B. Monr. 161. See Hill on Trustees, 4 Am. ed. 298, &c., and notes. 



ORDINARY AND CHARITABLE TRUSTS. 125 

nience, it is usual in all settlements, the trusts of which 
are likely to last for any length of time, to introduce a 
clause, authorizing the retirement of existing trustees and 
the nomination of new ones, with such provisions against 
misuse of the authority as may he considered expedient. 
If no such authority be given, or if the trustee is unwill- 
ing to exercise it, he can only be denuded of his office by 
a decree in equity. If he has a sufficient ground for 
retiring, the costs of a suit for that purpose will be paid 
out of the estate ; as, for instance, if he becomes involved 
in complicated questions, which could not have been anti- 
cipated when he undertook the trusts ; but he cannot 
burden the estate with costs occasioned by a capricious 
abandonment *of his charge. (r)^ After a bill has r*Dq-| 
been filed for the appointment of new trustees, it is 
improper, though not absolutely incompetent, for the origi- 
nal trustees, to make an appointment without authority 
from the Court, notwithstanding there may be a power of 
appointment in the deed of trust ; nor will the existence 
of such a power induce the Court to appoint new trustees 
on the nomination of the old ones, Avithout inquiry as to 
the fitness of the parties nominated, (s) In some decrees 
appointing new trustees, a power for such new trustees to 
supply future vacancies without a fresh application to the 
Court has been inserted, but the admissibility of such a 
power, except under special circumstances, appears to be 
doubtful. (0' 

(r) Coventry i-. Coventry, 1 Keen 758 ; Greenwood v. Wakeford, 1 Bea. 
576. 

(s) Attorney-General v. Clack, 1 Bea. 467 ; Cafe v. Bent, 3 Hare 245 ; 

V. Roberts, 1 J. & W. 251. 

{t) White V. White, 5 Bea. 221 ; Bowles v. Weeks, 14 Sim. 591. 

^ Matter of Jones, 4 Sandf. Ch. 615 ; Cruger v. Ilalliday, 11 Paige 314; 
Courtney v. Courtney, 3 Jones & Lat. 529. 
* It is now established that such power cannot be exercised by the 



126 ADAMS's DOCTRINE OF EQUITY. 

Where a conveyance by substitution under the statute 
is requisite, an appointment of new trustees may be made 
summarily on petition without bill. But this authority 
is confined to cases of substituted com^eyance, and does 
not apply generally to the appointment of new trus- 
tees, (m) 

A trustee of stock or money is now enabled to get rid 
of his trust by payment or transfer to the Accountant- 
General, without the necessity of filing a bill. For this 
purpose, it is enacted that all trustees, executors, admin- 
istrators or other persons, holding moneys, stock, or gov- 
ernment or parliamentary securities, belonging to any trust, 
or the major part, may pay, transfer, or deposit them into 
or in the name of the Accountant-General, on filing an 
affidavit shortly describing the instrument creating the 
trust ; and that the application of the fund shall be after- 
wards regulated by the Court on petition, (e;) 

So soon as the creation and acceptance of a trust are 
perfected, the property which it affects is subjected, as we 
*have seen, to a double ownership ; an equitable 
L -I ownership in the cestui que trust, and a legal own- 
ership in the trustee. 

The equitable ownership or interest of the cestui que 
trust is in strictness a mere chose in action, or right to sue 
a suhpoena against the trustee. But it is considered in 
equity the estate itself; and is generally regulated by 
principles corresponding with those which apply to an 
estate at law. The terms in which it is declared are in- 
terpreted by the same rules ; it is subject to the same 

{u) 1 Wm. 4, c. 60. 
[v] 10 & 11 Vict. c. 96. 

court : Holdin v. Durbin, 11 Beav. 574 ; Oglander v. Oglandcr, 2 De G. & 
Sm. 381. 



ORDINARY AND CHARITABLE TRUSTS. 127 

restraints of policy, and is governed by the same laws of 
devolution and transfer. The analogy, however, is not 
free from exception ; and the character of the exceptions 
which exist, together with the general operation of the 
rule, will now form the subject of consideration. 

I. The terms in which a trust is declared are interpreted 
by the ordinary rules of law.^ 

It was at one time suggested, th&t the language of a 
trust might be construed with greater- license than that of 
a gift at law. But this notion is now at an end. And it 
is clear that the declaration of an executed trust, i. e., a 
trust of which the scheme has in the outset been com- 
pletely declared, will bear exactly the same construction 
as if it had been a conveyance of the legal estate. If the 
scheme has been imperfectly declared in the outset, and 
the creator of the trust has merely denoted his ultimate 
object, imposing on the trustee or on the Court the duty 
of effectuating it in the most convenient way, the trust is 
called executory, and is construed by a less stringent rule.^ 

The reason of this apparent exception is obvious, for 

' Equity subjects trusts to the same construction that a court of law does 
legal estates ; and a donee must have capacity to take whether it is at- 
tempted to convey title directly to the party himself, or to another in 
trust for him : Trott«r v- Blocker, 6 Porter 269 ; see Cudworth c. Hall's 
Adm'r, 3 Dessaus. 256. 

* The distinctions between executory and executed trusts, especially 
with regard to the application of the rule in Shelley's Case, are generally 
recognised in the United States : Croxall v. Shererd, 5 Wall. S. C. 281 ; 
Dennison v. Goehring, 7 Penn. St. 177 ; Wood v. Burnham, 6 Paige 518 ; 
Tallman p. Wood, 26 Wend. 19 ; Home v. Lyeth, 4 Harr. & J. 434 ; Gar- 
ner V. Garner, 1 Desaus. 444 ; Porter v. Doby, 2 Rich Eq. 49 ; Edmonson 
V. Dyson, 2 Kelly 307 ; Lessee of Findlay ». Riddle, 3 Binn. 152 ; Neves r. 
Scott, 9 How. U. S. 211 ; Berry v. Williamson, 11 B. Monr. 251 ; Imlay v. 
Huntington, 20 Conn. 162 ; Saunders v. Edwards, 2 Jones Eq. 134 ; Wag- 
staffe r. Lowere, 23 Barb. 215 ; Note to Lord Glenorchy r. Bosville, 1 Lead. 
Cas. Eq. 1. 



128 ADAMS's DOCTRINE OF EQUITY. 

the very existence of a requirement to devise means for 
eiFectuating the trust, proves that the language already 
used is not meant as a conclusive declaration of its terms. 
And such language is accordingly treated by the Court 
as indicating the mere heads of an arrangement, the de- 
tails of which must be ascertained from general usage. 

If, for example, an executed trust be declared in favor 
*of one for life, with remainder to his issue, sub- 
L -I ject to a proviso that he shall not bar the entail, 
the first taker will be tenant in tail, under the rule in 
Shelley's Case, and the proviso will be void as inconsis- 
tent with his estate. But if the trust were executory, a 
similar direction would be held to signify that the estate 
should go as nearly as possible in the line of an entail, 
without giving the first taker a power to alienate, and 
would be effectuated by directing a strict settlement, i.e., 
an estate to himself for life, with a limitation to trustees 
to preserve contingent remainders, with remainder to his 
sons successively in tail. 

In the case of executory marriage articles, there is an 
indication furnished by the nature of the instrument, in- 
dependently of any expressed intention leading to this 
construction of the trust; for it is assumed, in accord- 
ance with ordinary practice, and in the absence of reason 
to conclude the contrary, that the settlement contemplated 
by such articles is one which will not only provide for the 
husband and wife, but will also secure a provision for the 
children of the marriage. If, therefore the articles, strictly 
interpreted, would have a different result, they will be 
moulded in conformity with the presumed object. In the 
case of wills, on the other hand, there is no &uch j^rimd facie 
indication of intent. The gifts in a will are mere bounty, 
and are themselves the only guide in the construction of 



ORDINARY AND CHARITABLE TRUSTS. 129 

their terms. If, therefore, technical words are used, and 
are not modified or explained by the context, it seems 
that the trusts, whether executory or not, must be con- 
strued in accordance with the technical sense. But in the 
case of an executory trust, the intention so to modify 
them may be collected from slighter indications than 
would be sufficient in that of an executed one ; e. g., in 
case of an executory trust to make an entail, the Court 
would be enabled to direct a strict settlement of the estate 
upon the intention gathered, and from an express limita- 
tion to the first taker for life, though followed by a re- 
mainder to the heirs of ^his body (especially if the r*4^9-i 
gift for life be made in terms unimpeachable of 
waste) ; or from a limitation to preserve contingent re- 
mainders ; or a limitation of the remainder to issue in- 
stead of heirs ; although clauses of this kind would be 
ineffectual to vary an executed trust, if its terms would 
in themselves create an entail. (?<')^ 

In cases where marriage articles, after limiting a free- 
hold estate in strict settlement, have directed that lease- 
holds shall be settled on analogous trusts, or that pictures 
or other personal chattels shall be settled to go as heir- 
looms with the estate, a question has arisen as to the 
correct frame of the settlement. The effect of a settle- 

(tc) Austen v. Taylor, 1 Eden 361 ; Blackburn v. Stables, 2 Yes. & B. 
367 : Jervoise v. Duke of Northumberland, 1 J. & W. 559 ; Rochford v. 
Fitzmaurice, 1 Conn. & L. 158} 2 Jarm. on Wills 253-266; Lewin on 
Trustees 45-61. 

* See Garner v. Garner, I Dessaus. 444; Berry v. Williamson, 11 B. 
Monroe 251 ; Imlay v. Huntingdon, 20 Conn. 146 ; Carrol v. Renich, 7 
Sm. & Marsh. 799 ; Neves v. Scott, 9 How. U. S. 196: and see a discussion 
of the subject in Egerton v. Brownlow, 4 House Lds. Cas. 1 ; see also 
Gevers v. Wright's Ex'rs, 3 Green (N. J.) 330; Steinbergers Trustees v. 
Potter, Id. 452. 
9 



130 ADAMS's DOCTRINE OF EQUITY, 

ment of personal chattels on limitations identical with 
those of the freehold estate, would he, that the leaseholds 
or other personalty, heing incapable of entail, would vest 
absolutely in the first tenant in tail, and on his death 
would go to his executor. This inconvenience, however, 
may be to some extent obviated during the period within 
the limits of perpetuity, viz., a life in being, and twenty- 
one years afterwards, by directing that on the death of a 
tenant in tail, without issue, the personalty shall go by 
way of executory gift to the party next entitled under 
the settlement ; and it seems that articles directing such 
a settlement are to be construed to imply such an execu- 
tory gift on death, under twenty-one and without issue, {xy 

2. The equitable ownership is subjected to the same 
restraints of policy as if the legal estate were transferred. 

It cannot, for example, in the case of real estate be 
enjoyed by an alien; (t/Y it cannot be made incapable of 
alienation by the owner, or be denuded of any other 
right incidental to ownership ; (^) ^ nor can it be settled in 

(x) Duke of Newcastle v. Countess of Lincoln, 3 Ves. 387, 12 Ves. 218 ; 
Lord Deerhurst v. Duke of St. Albans, 5 Madd. 232. [See Rowland v. Mor- 
gan, 13 Jur. 23 ; s. c. 2 Phill. 764.] 

[y] Du Hourmelin v. Sheldon, 1 Bea. 79 ; 4 M. & C. 525. 

(z) Brandon v. Robinson, 18 Ves. 429 ; [Rochford v. Hackman, 9 Hare 
475.] 

^ A very full discussion of the authorities on the subject of the settle- 
ment of personal chattels will be found in Scarsdale v. Curzon, 1 Johns. & 
H. 40; and see 7 Jur. N. S. pt. 2, 71. 

^ Atkins V. Kron, 5 Ired. Eq. 207 ; Hubbard v. Goodwin, Leigh 492 ; 
Leggett V. Dubois, 5 Paige 114 ; Taylor v. Benham, 5 How. U. S. 270 : Ritt- 
son V. Story, 3 Sm. & Giff. 230; though see Barrow v. Wadkin, 24 Beav. 
1, when it was held that the crown could claim the benefit of a purchase 
made in trust for an alien. But it is difi"erent as to the proceeds of real 
estate, directed to be sold by will ; an alien being able to hold personalty : 
Craig r. Leslie, 3 Wheat. 563 ; Comm. v. Martin, 5 Munf. 117. 

^ In a recent case in the Supreme Court of the United States, Nichols v. 
Levy, 5 Wallace 441, the law on this subject was thus stated by Mr. Jus- 



ORDINARY AND CHARITABLE TRUSTS. 131 



*series of limitations extending, or which may r^to-] 
dend, beyond the limits of perpetuity, viz., a life 



a 

extend, 

or lives in being, and twenty-one years afterwards ; (a) and 
in the particular case of trusts for accumulation, the period 
of duration is still more narrowly limited; and it is enacted, 
that no such accumulation shall be allowed for a longer 
term than the life of the grantor, or twenty-one years from 
the death of the grantor or testator, or the minority of 
some person living or in ventre sa mere at his death, or 
during the minority only of such persons as would for the 
time being, if of full age, be entitled to the rents and 
profits. This restriction, however, does not extend to any 
provision for payment of debts, or for raising portions for 

(a) 1 Jarm. on Wills, c. ix, s. 2. 

tice Swayne. " It is a settled rule of law that the beneficial interest of the 
cestui que trust, whatever it may be, is liable for the payment of his debts. 
It cannot be so fenced about by inhibitions and restrictions as to secure to 
it the inconsistent characteristics of right and enjoyment to the beneficiary, 
and immunity from his creditors. A condition precedent that the provision 
shall not vest until his debts are paid, and a condition subsequent that it 
shall be divested and forfeited by his insolvency with a limitation over to 
another person are valid, and the law will give them full effect. Beyond 
this, protection from the claims of creditors is not allowed to go." In this 
case the application of the rule was prevented by reason of a statute in 
Tennessee, by the law of which state the trust was governed : see also Hal- 
lett r. Thompson, 5 Paige 583 ; Dick r. Pitchford, 1 Dev. & Bat. eq. 480. 
But in Pennsylvania and Kentucky, such proviso is held good, where the 
cestui que trust is l-.imself entirely excluded, by the terms of the trust, from 
any control over the property : Vaux v. Parke, 7 W. & S. 19 ; Pope v Elliott, 
8 B. Monr. 56 ; see also, Campbell v. Foster, 35 N. Y. 361. It is only in 
cases where a clear surplus will exist after a reasonable sum has been ap- 
propriated to the support of the person for whose benefit a trust was 
created, that courts of equity are authorized to interfere in behalf of judg- 
ment creditors, and divert a portion of the income or annuity to the pay- 
ment of the debts of such person : Genet v. Beckman, 45 Barb. (N. Y.) 
382. Even in Pennsylvania, however, a person sui juris cannot settle pro- 
perty on himself for life, free from debts : Mackason's Appeal. 42 Penn. 
St. 330. 



132 ADAMS's DOCTRINE OF EQUITY. 

children, or to any directions touching the preservation of 
woods of timber. (^)^ 

The rule, however, which subjects equitable estates 
to the same restraints of policy as if they were legal, 
admits of two singular exceptions, both having reference 
to married women; the one in what are called the sepa- 
rate use and pin-money trusts, enabling a married woman 
to hold property independent of her husband, and allow- 
ing such property to be made inalienable; the other in 
what is called the wife's equity for a settlement, restrain- 
ing the husband's right over her equitable chattels real 
and choses in action, until an adequate settlement has 
been made. 

The eifect of the separate use trust, is to enable a 
married woman, in direct contravention of the principles 
of law, to acquire property independently of her husband; 
and to enter into contracts, and incur liabilities in refer- 
ence to such property, and dispose of it as a feme sole, 
notwithstanding her coverture and disability at law,'-^ 
When this object had been effected, it was found that the 
influence of the husband in inducing his wife to alienate, 
rendered the trust in practice nugatory ; and to obviate 
r*44.1 ^^^^ difficulty, *and secure to her the desired pro- 
tection against the marital rights, another principle 

(6) Thelusson v. Woodford, 4 Ves. 227 ; 11 Ves. 112; 39 and 40 Geo. 3, 
c. 98 ; 1 Jarm. on Wills, c. ix, s. 3. 

^ See ante, note 1 to page 40 ; and see the subject of perpetuities, dis- 
cussed in Lorillard v. Coster, 5 Paige Ch. 172 ; Ilillyard v. Miller, 10 
Penn. St. 335. In some of the United States as in Pennsylvania, and 
New York, there are legislative provisions against accumulation. See Hill 
on Trustees 394, note. 

"^ Upon the trusts for separate use in the United States, see 2 Kent's 
Comm. 162 ; notes to Hulme v. Tennant, 1 Lead. Cases in Eq. 394 ; Hill 
on Trustees, 4th Am. ed. 625. 



ORDINARY AND CHARITABLE TRUSTS. 133 

was infringed, by deciding that the gift of the separate 
estate, whether for life, or for an absolute interest, might 
be fettered and qualified by prohibiting anticipation or 
alienation, (c) The question then arose, whether the 
operation of such a clause was confined to an existing 
coverture, or might be extended to take effect on a future 
marriage. It was admitted, that during discoverture the 
clause was void, and that the ownership was absolute up 
to the moment of marriage ; and it might therefore have 
been expected that, by the act of marriage, the usual 
interest would be conferred on the husband. A contrary 
decision, however, was not a greater violation of principle 
than that which originally gave validity to the trust. The 
trust is founded on the power of the Court of equity to 
model and qualify an interest in property which it had 
itself created, without regard to those rules by which 
the law regulates the enjoyment of property in other 
cases. And in accordance with this view, it was decided 
that, although the prohibitory clause is nugatory whilst 
the discoverture lasts, yet if the property be not disposed 
of during that period, the prohibition will attach imme- 
diately on the second marriage. (</)^ At this point, ho w- 

(c) Bagget V. Meux, 1 Coll. 138 ; 1 Ph. 627 ; Rennie v. Ritchie, 12 CI. * 
Fin. 204 ; GaflFee's Trust, 1 Macn. & Gord, 541. 

{d) Tullet V. Armstrong, 1 Bea. 1 ; 4 M^ & C. 377 ; [Gaffee's Trust, I 
Macn. & Gord. 541 ; Hawkes v. Hubback, 11 Eq. L. R. 5.] 

* The latter English doctrine, as stated in the text, has been followed in 
the United States, in Beaufort v. Collier, 6 Humph. 487 ; Shirley v. Shir- 
ley, 9 Paige 363 ; Fellows v. Tann, 9 Alab. 1003 ; Fears v. Brooks, 12 Geo. 
197; Waters v. Tazewell, 9 Md. 291. But in Hamersley v. Smith, 4 
Whart 126 ; Kuhn v. Newman, 26 Penn. St. 227 ; Lindsay r. Harrison, 3 
Eng. (Ark.) 311 (and see Dick r. Pitchford, 1 Der. &, Batt. Eq. 480), the 
separate use and the clause against anticipation were held to be valid only 
where there was an existing coverture, and inefiFectual as regards a subse- 
quent one : see Dubs v. Dubs, 31 Penn. St. 149. And a similar decision was 
made in Miller v. Bingham, 1 Ired. Eq. 423, followed in Apple v. Allen, 



134 ADAMS's DOCTRINE OF EQUITY. 

ever, a line has been drawn ; and the separate use trust 
is so far bound by the policy of the law, that it must 
contemplate the wife's continuance with her husband. If 
it be framed with a view to future separation, it violates 
principle beyond the authorized limit, and is for that 
reason invalid. A deed, however, which contemplates 
an immediate separation, and makes a separate provision 
for the wife, with a view to that object, may be sustained 
and enforced, notwithstanding that its primary object — 
the separation itself — is incapable of enforcement by either 
party. But such a provision is upheld on the ground of 
its legal validity, and not on the footing of a separate 
r*4.^~\ ^^*"st. The consistency of the doctrine *which 
thus invalidates the primary object of a deed, but 
gives effect to a collateral one, was doubted by Lord 
Eldon, but he felt himself bound by the decisions at law. 
If after a provision has been made for an immediate sepa- 
ration, the parties come together again, its operation is at 
an end with respect to any future, as well as the past, 
separation. («)^ 

(e) Lord St. John v. Lady St. John, 11 Ves. 537; Westmeath v. Salis- 

3 Jones Eq. 120 ; though see Bridges v. AVilkins, Id. 342. Upon Hamers- 
ley V. Smith, however it is to be remarked, that it was based upon the 
English decision of Massey v. Parker, 2 M. & K. 174, which has since 
been repeatedly overruled ; and that in so far, therefore, its authority 
has been weakened. See Wells v. McCall, 64 Penn. St. 207. And it is 
difficult, moreover, to assent to the reasoning in that case, without denying 
the validity of the separate use altogether. For if such a restraint upon 
ownership be lawful when applied to a state of coverture, the obvious 
contrivance of giving an unfettered estate to the woman while sole, with 
express limitations over to a trustee for the separate use, &c., upon the 
concurrence of the next and succeeding covertures, would obviate any 
objection which could be urged. If this be so, it would be contrary to 
every principle of equity, to hold that the mere absence or imperfection 
of the proper machinery, where the intention to create such a trust was 
obvious, woold interfere with its enforcement. 
* A contract between husband and wife for immediate separation, and 



ORDINARY AND CHARITABLE TRUSTS. 135 

The language which will create a separate trust, as well 
as that which will impose a fetter on anticipation, has 
been the subject of nice distinctions. It is not sufficient 
that there be a gift for the wife's benefit, or a direction to 
pay the money into her own hands, for there is nothing 
in this inconsistent with the marital right. But there 

bury, 5 Bligh 339 ; [Cartwright v. Cartwright. 17 Jur. 584 ;] Frampton r. 
Franipton, 4 Bea. 287 ; Jodrell v. Jodrell, 9 Id. 45 ; [Webster v. Webster, 
22 L. J. Ch. 837.] 

for a separate allowance to his wife, made through the intervention of a 
trustee, is valid : Carson v. Murray, 3 Paige Ch. 483 ; Champlin v. 
Chaniplin, 1 Hoff. Ch. 55; Huttou v. Duey, 3 Penn. St. 100; Dillinger's 
Appeal, 35 Penn. St. 357 ; Simpson v. Simpson, 4 Dana 140 ; Rogers v. 
Rogers, 4 Paige 518 ; Carter v. Carter, 14 Sm. & M. 59 ; Barron v. Barron, 
24 Verm. 375 ; McKennan v. Phillips, 6 Wharton 571 ; Reed v. Beazley, 
1 Blackf. 97 ; and where a reservation of a right to visit each other in case 
of sickness, was made in the deed, but never acted on, this reservation was 
held not to invalidate the agreement: Carson r. Murray. But see Rogers 
V. Rogers, 4 Paige Ch. 516 ; Wallingsford v. Wallingsford, 6 Har. & J. 
485 ; McKennan v. Phillips, 6 Wharton 571 ; McCrocklin v. McCrocklin, 2 
B. Monr. 370. Although generally the provisions of a separate deed are 
annulled by reconciliation and re-cohabitation, yet the husband may con- 
duct himself subsequently so as to create new obligations on the footing 
of those in the separate deed. As where in a deed of separation, the hus- 
band covenanted to pay an annuity to the wife for her life, and subse- 
quently, after living apart for a while, he promised her that if she would 
come and live with him again, the annuity should be continued, it was 
held that the annuity was not forfeited by re-cohabitation : Webster ». 
Webster, 22 L. J. Ch. 837 ; 27 Id. 115. 

In England, it is now established, that specific performance of articles 
of agreement to a separation, so far as they regard an arrangement of pro- 
perty agreed upon, may be decreed : Wilson v. Wilson, 1 H. Lords Cas. 
538 ; see s. c. 5 H. Lords Cas. 40. And a covenant to live separate will 
be enforced by injunction: Sanders v. Rodway, 16 Jur. 1005; though 
where the agreement contains provisions for the education of the children, 
which are contrary to public policy, it cannot be enforced in any part : 
Vansittart v. Vansittart, 27 L. J. Ch. 295. But a different doctrine from 
that established in Wilson t*. Wilson, is still held in the United States. 
See cases collected in Hill on Trustees, 4th Am. ed. 668 ; Calkins r. Lang, 
22 Barb. 97. 



136 ADAMS's DOCTRINE OF EQUITY. 

must be a direction that it shall be for her sole, separate, 
or independent use, or in other equivalent terms showing 
a manifest intent to exclude the husband. (/)^ In like 
manner, in order to create a fetter on anticipation, there 
must be positive Avords, or a manifest intention to restrain 
that power of disposal, which \& prima facie incidental to 
ownership. (^)^ 

(/) Tyler v. Lake, 2 R. & M. 183 ; Massey v. Parker, 2 M. & K. 174 ; 
Blacklow V. Laws, 2 Hare 49. 

[g] Brown v. Bamford, 11 Sim. 127; 1 Ph. 620; Medley v. Horton, 14 
Sim. 222 ; Baggett v. Meux, 1 Coll. 138 ; 1 Ph. 627 ; [Cooke v. Husbands, 
U Md. 504; Ross's Trust, 1 Sim. N. S. 196.] 

^ It is difficult to lay down any precise rule on this subject, and impos- 
sible to reconcile all the decisions. There must be an intention to confer 
a separate interest on the wife ; and this intention must be properly mani- 
fested. The intention must exist; for without it, words which would 
otherwise dreate a separate estate will not have that effect. Thus in Lewis 
V. Mathews, L. R. 2 Eq. 177, there was a devise of real and personal estate 
to H., 2k feme sole who afterwards married, " her heirs, executors, adminis- 
trators and assigns, for her and their own sole and absolute use and bene- 
fit," and it was held that these words did not create a separate estate in 
H., because they were applied equally to her heirs and executors, as to 
whom no such intention could exist : see also Rudisell v. Watson, 2 Dev. 
Eq, 430. The intention must be properly manifested ; and this may be 
done by the use of expressions which either confer upon the ^eme a domin- 
ion over the property inconsistent with her position as coverte, or which 
exclude the rights of the husband. Of the first class of expressions in- 
stances will be found in Jamison v. Brady, 6 S. & R. 466 : Gardenhire v. 
Hinds, 1 Head 402; Ellis v. Woods, 9 Rich. Eq. 19; Ozley v. Ikelheimer, 
26 Alab. 332; Nix v. Bradley, 6 Rich. Eq. 48 ; Bridges v. Wood, 4 Dana 
610 : of the latter, Woodrum v. Kirkpatrick, 2 Swan 218; Martin v. Bell, 
9 Rich. Eq. 42; Young v. Young, 3 Jones Eq. 216; Ballard v. Taylor, 4 
Dessaus. 550 ; Evans v. Knorr, 4 Rawle 66 ; Perry v. Boileau, 10 S. & R. 
208, are examples. 

In general as to what words will or will not create a separate use, see 
the American note to Hulme v. Tenant, 1 Lead. Cas. Eq. 539, and Hill on 
Trustees 654 to 650 (4th Am. ed.). Particular attention may perhaps be 
called to Gilbert v. Lewis, 1 De G., J. & Sm. 38, and Tarsay's Trusts, L. 
R. 1 Eq. 561. The intervention of a trustee is not necessary : 1 Lead. 
Cas. Eq. 641. 

* But it is now held that express negative words are not necessary to 



ORDINARY AND CHARITABLE TRUSTS. 137 

In the absence of any fetter on anticipation, the wife 
has the same power over her separate property as if she 
were unmarried. Her disability to bind herself or her 
general property is left untouched ; but she may pledge 
or bind her separate property, and the Court may proceed 
in rem against it, though not in personam against herself. 
In order that the separate property may be thus bound, 
it is not necessary that she should execute an instrument 
expressly referring to it, or purporting to exercise a power 
over it. It is sufficient that she professes to act as 2. feme 
sole. For the Court of Chancery, in giving her the capa- 
city to hold separate property, gives also the capacity 
incident *to property in general, of incurring debts ri^Aa-\ 
to be paid out of it; and enforces payment of 
such debts when contracted, not as personal liabilities, 
but by laying hold of the separate property, as the only 
means by which they can be satisfied. (7^)^ 

(A) Murray v. Barlea, 4 Sim. 82 ; 3 M. & K. 209 ; Aylett v. Ashton, 1 M. 
& C. 105 ; Tullett V. Armstrong, 4 Bea. 319 ; Owens v. Dickinson, Cr. & P. 
48; Lord v. Wightwick, 2 Ph. 110; [AVilton v. Hill, 25 L. J. .Ch. 157; 
Vaughan v. Vanderstegen, 2 Drew 363.] 

create a restraint upon alienation. Thus in Baker v. Bradley, 7 De G., M. 
& G. 597, there was a provision that the married woman's receipts alone, 
or those of some person authorized to receive any payments of the said 
rents and income, after such payment should have become due, should 
alone be a sufficient discharge, and it was held affirming, Field v. Evans, 
15 Sim. 375, that this was a valid restraint. To the same eCFect is Free- 
man V. Flood, 16 Geo, 528; see, however, Cooke v. Husbands, 11 Md. 
504. The restraint on alienation, though a creature of the Court of Chan- 
cery, cannot be dispensed with by the Court, even where the interest of 
the married woman might require it. Thus, where a testator gave a 
legacy to a married woman, on condition that she should convey to a third 
person her interest in certain property of small value, included in an 
estate which was settled to her separate use, without power of anticipa- 
tion, it was held that the condition could not be accomplished, and the 
legacy failed : Robinson v. Wheelwright, 6 De G., M. & G. 535. 

1 The FiUglish lule is that, in the absence of any restraint on alienation, 
a feme covert has the same power of disposition over personal property 



138 ADAMs's DOCTRINE OF EQUITY. 

The fin-money trust is so far similar to that for separate 
use, that in both cases the property subject to the trust 

settled to her separate use, as a, feme sole; and a recent decision has declared 
that she has a similar capacity as to her real estate : Taylor v. Meads, 
34 L. J. Ch. 203 ; 11 Jur. N. S. 166. Her power of disposing of her realty 
had formerly been limited to the rents and profits ; but in the case last 
mentioned it was said that she could convey the corpus thereof by a will or 
by a deed not acknowledged according to the formalities of the statute. 
See Hill on Trustees 658, note. In some of the United States the English 
doctrine as to personalty and the income of real estate is followed : Ives v. 
Harris, 7 Rh. Island 413 ; Leaycraft v. Hedden, 3 Green Ch. 551 ; Imlay 
r. Huntington, 20 Conn. 175 ; Coleman v. Wooley, 10 B. Monr. 320; Vizon- 
neau v. Pegram, 2 Leigh 183 ; Newlin v. Freeman, 4 Ired. Eq. 312; Brad- 
ford u. Greenway, 17 Alab. 805; Fears u. Brooks, 12 Geo. 200; Coats f. 
Robinson, 10 Miss. 757 ; Cooke v. Husbands, 11 Md. 504. 

In others the feme has only such power of disposition as is given by the 
instrument creating the trust: Lancaster v. Dolan, 1 Rawle 231 ; Reid v. 
Lamar, 1 Strobh. Eq. 27 ; Porcher v. Reid, 12 Rich. Eq. 349 ; Doty v. 
Mitchell, 9 Sra. & M. 435 ; Marshall v. Stephens, 8 Humph. 159. In New 
York the Court of Appeals, in Jacques v. The Methodist Church, 17 Johns. 
548, overruling a decision of Chancellor Kent, adopted the English rule ; 
but now, under the revised statutes, the interest of a married woman is 
inalienable, and she cannot charge or affect it in any manner : Noyes v. 
Blakeman, 3 Sandf. 538 ; 2 Seld. 567 ; Leggett v. Perkins, 2 Comstock 297. 
See Yale v. Dederer, 18 N. Y. 265 ; 22 Id. 4ri0 ; Hill on Trustees 604, note. 

In Pennsylvania it was at one time held that the " Married Woman's 
Act" in that state had altered the rule : Haines v. Ellis, 24 Penn. St. 
253. But a more recent and better considered decision has established the 
contrary : Wright v. Brown, 44 Penn. St. 224. In none of the states has 
the doctrine been carried to the extent which it has reached in England 
in Taylor v. Meads (supra) ; and an express power is necessary to enable 
the feme to dispose of the corpus of real estate. 

The decisions in the United States, as to the liability of the separate 
estate to the debts and charges of a feme covert, are not uniform. In some 
of those states in which she is held to possess an implied power over her 
separate' property, the decisions establish that, in order to make a debt a 
charge on that property, there must be some reference thereto, or the debt 
be contracted for the benefit, or on credit thereof: N. A. Coal Co. v. Dyett, 
7 Paige 14; Dickson v. Miller, 11 Sm. & M. 594; Frazier t'. Brownlow, 3 
Ired. Eq. 237. In others the broader English rule is followed : Collins v. 
Lavenburg, 19 Alab. 685; Coats v. Robinson, 10 Missouri 757; Bell v. 
Kellar, 13 B. Monr. 381 ; Lillard v. Turner, 16 Id. 374 ; Whitesides v. 



ORDINARY AND CHARITABLE TRUSTS. 139 

is placed at the wife's sole disposal, independent of her 
husband's control. But in one respect the two trusts are 
'essentially different : the one places the property at her 
absolute disposal for any purpose which she may select ; 
the other secures to her an income during the coverture, 
to be specifically expended in her dress and personal 
expenses, lest the husband should refuse her an adequate 
allowance. It is a fund, therefore, which she is not 
entitled to accumulate, but may be made to spend during 
the coverture by the intercession and advice, and at the 
instance, of her husband : it seems probable that, should 
she refuse to spend it, the husband would be entitled to 
withhold it from her ; and it has been decided that, if it 
be not in fact paid to her, no claim for arrears beyond a 
year can be made by herself, and no claim, even for that 
period, by her personal representatives, (z) 

It has been contended that alimony is in the nature of 
separate estate, so that the wife may bind herself by con- 
tracts respecting it, and that a bill may be sustained by 
her executors for an account. This, however, is not the 
case. " Alimony is not separate estate, but a mere pro- 
vision for maintenance from day to day, decreed by a 
competent Court to a wife legally separated from her 

[i) Howard v. Digby, 8 Bligh 224, 245, 267, 268 ; Beresford v. Arch- 
bishop of Armagh, 13 Sim. 643. 



Cannon, 23 Missouri 457. Where, however, no power is attributed to the 
feme except such as is expressly given, as in Pennsylvania, the question 
cannot arise, except perhaps in the case of necessaries. See Wallace v. 
Coston, 9 Watts 137. In South Carolina, however, the separate estate is 
held liable for debts contracted on its account and for its use : Magwood 
V. Johnston, 1 Hill Eq. 228 ; Adams v. Maekay, 6 Rich. Eq. 75. Under 
the Revised Statutes, in New York, the trustee alone has the power to sub- 
ject the estate to debts for its necessary expenses, &g. : Noyes v. Blakeman, 
3 Sandf. S. C. 531 ; 2 Seld. 567. The equitable doctrines on these subjects 
are modified in many of the States by the " Married Woman's Acts." 



140 ADAMS's DOCTRINE OF EQUITY. 

husband, and is subject in respect to its amount, con- 
tinuance, and mode of payment, to the discretion of the 

.-..-^ *Ecclesiastical Court.^ The wife has in fact no" 

r 471 

•- -^ property therein ; and the Court of Chancery can 

give no relief respecting it, except by granting a writ of 
ne exeat regno, where the husband is about to leave the 
kingdom, on the special ground that the Ecclesiastical 
Court cannot compel him to find bail.(^) 

The wife's equity for a settlement attaches on her 
equitable chattels real, and on such of her equitable choses 
in action as are capable of being immediately reduced into 
possession, and it authorizes a restraint of the husband's 
right, until he shall have made an adequate settlement.'^ 

The rule at law with respect to chattels real and choses 
in action, of which the wife has the legal ownership, is 
that in both cases, if the wife survive her husband, and 
no act be done by him to bar her right, she is entitled by 
survivorship on his decease. But the nature of the hus- 
band's title and the means by which he may bar his wife's 
right, differ materially in the two cases. With respect to 
terms of years and other chattels real, the right of the 

{k) Vandergucht ». De Blaquiere, 8 Sim. 315 ; 5 M. & C. 229. 

' For these reasons no action can be maintained in another state upon 
a decree of alimony : Barber v. Barber, 1 Chand. (Wise.) 280. Though 
arrears before a decree of divorce a vinculis in another state may be re- 
covered in the latter : Harrison ». Harrison, 20 Alab. 629. See Hill on 
Trustees 663, note. 

* It is now the rule in England that the wife's equity to a settlement will 
be sustained as well against real as personal estate : Sturgis v. Champneys, 
.5 Myl. & Cr. 97 ; though this doctrine has been followed reluctantly : Han- 
son V. Keating, 4 Hare 1 ; and will not (it is said) be extended : Gleaves v. 
Paine, 1 De G., J. & Sm. 87. See, however, Newentiam v. Pemberton, 11 
Jur. 1071 ; 1 De G. & Sm. 644. In Virginia this doctrine has been ap- 
proved : Poindexter v. Jeffries, 15 Grat. 363, and see Rees v. Waters, 9 
Watts 90 ; Hill on Trustees 626, note. 



ORDINARY AND CHARITABLE TRUSTS. 141 

husband is a right to the profits during coA^erture, with an 
absolute right of disposal by act inter vivos ; and if he sur- 
vive his wife, they are absolutely his. With respect to 
choses in action his right is more limited ; for the mere 
right of action is not transferable, but remains in the wife 
notwithstanding her coverture, to be exercised by her and 
her husband jointly. If it is so exercised by them, and 
the chose in action is reduced into possession, it becomes, 
like her other personalty in possession, the husband's 
property ; but until that time it remains in the wife. If 
she survives, she takes it absolutely ; and if the husband 
survives, he takes it as her administrator, and not in his 
own right. (/) ^ 

In order therefore to exclude the wife's right of survi- 
vorship, the husband must assign her chattel real, and 
must reduce into possession her chose in action. And if 
*he can effectuate this by course of law, there is r^j^o-i 
no equity to restrain him. It might therefore be 
expected that where the wife's interest is equitable, instead 
of legal, the analogy of law would be pursued in equity, 
so that the husband's assignee of the chattel real would 
be entitled wholly to exclude the wife, and the husband 
himself might proceed of right in equity to reduce into 
possession the chose in action. The practice of the Court, 
however, is otherwise. The trustee or holder of the pro- 
perty may transfer it without suit to the husband, and 
will not be responsible for so doing. But if he refuses to 
do so, or a bill be filed on the wife's behalf to prevent him, 
so that the property is brought within the control of the 
Court, and the assistance of the Court is required to give 

[1) 2 Steph. Blacks. 300. 

^ For authorities in the United States, on this question, see Hill on 
Trustees, 4th Am. ed. 042, note, and see post 142, note. 



142 ADAMs's DOCTRINE OF EQUITY. 

any benefit in it to the husband or his assignee, it is an 
established equity, founded on long practice, that the hus- 
band shall not have it, if it exceeds 200/.,^ unless he makes 
or has already made an adequate provision for his wife 
and children. This is termed the wife's equity for a set- 
tlement. It is unaffected by any act or assignment of the 
husband; and the only mode by which it can be barred, 
is by the wife's personal waiver in Court on examination 
apart from her husband, (m) If the chose in action be one 
which the husband cannot reduce into present posses- 
sion, as if it be to take effect after the coverture, or on the 
determination of an existing life estate, the wife is en- 
titled to the whole, notwithstanding her marriage, and 
there is no interest in the husband on which the equity 
can attach.^ 

(m) Elibank v. MontoHeu, 5 Ves. 737 ; Murray v. Elibank, 10 Yes. 84 ; 

13 Ves. 1 ; Johnson v. Johnson, 1 J. & W. 452 ; Sturgis v. Champneys, 5 
M. & C. 97 ; Hanson v. Keating, 4 Hare 1. 

^ It is not material now, in England, that the property should exceed 
200/.: Cutlers' Trust, 14 Beav. 220; Kincaid's Trusts, 1 Drewry 326, 
where it was said that the rule applied to taking the wife's assent to part- 
ing with her interest. 

^ The doctrine stated in the text is sustained by the American authori- 
ties : Tevis's Rep. v. Richardson's Heirs, 7 Monroe 654 ; Fabre v. Golden, 
1 Paige 166 ; Smith v. Kane, 2 Id. 303 ; McElhatton v. Howell, 4 Hey- 
wood 19, 24 ; Kenny v. Udal, 3 Cowen 590 ; s. c, Kenney v. Udall, 5 
Johns. Ch. 464 ; Elliott v. Waring, 5 Monroe 340 ; Van Duzer v. Van 
Duzer, 6 Paige 366 ; Whitesides v. Darris, 7 Dana 107 ; Andrews & Bro. 
V. Jones et al., 10 Ala. 400 ; Rees v. Waters, 9 Watts 90 ; Rorer v. O'Brien, 
10 Penn. St. 212 5 James v. Gibbs, 1 Patt. & Head 277 ; Moore i?. Mooney, 

14 B. Monroe 259 ; Bell v. Bell, 1 Kelly 637 ; see also, cases in notes to 
Murray v. Lord Elibank, 1 Lead Gas. Eq. 348, 3d Am. ed. ; Buncombe v. 
Greenacre, 7 Jur, N. S. 175 ; Hill on Trustees, 4th Am. ed.632, note. But 
not in New Hampshire and North Carolina : Parsons v. Parsons, 9 N. 11. 
309 ; Allen v. Allen, 6 Ired. Eq. 293. And a court of equity will go to a 
great length in protecting the wife, and the doctrine has been carried so 
far that the court say that the husband and his assignees will be restrained 



ORDINARY AND CHARITABLE TRUSTS. 143 

The equity, though called that of the wife, is effectuated 
by a settlement on her children also, as being, if the pro- 
perty is settled at all, the most proper mode of doing it ; 
and the wife cannot ^separate their interest from her 
own, or claim a settlement on herself to their exclusion. 
Their right, however, though inseparable from hers, is 
*merely incidental, and does not constitute an in- 
dependent equity; and therefore, if she die with- ^ -■ 
out having asserted her right, or if, after its assertion and 
while the matter rests in proposal, she come in and waive 
it, the husband after her death may receive the property, 
and the children have no equity to compel a settlement, (w) 

The provision usually made is one commencing from 
the husband's decease ; for, during his lifetime, he is the 
proper person to maintain his family. And accordingly, 
if the wife's interest be a mere life income, the equity 
does not attach ; for the payments during the coverture 
are properly receivable by the husband; and those to 
accrue afterwards are reversionary, and not reducible 
into the husband's possession, (o) If, however, the hus- 
band does not in fact maintain his wife, or if he has 
deserted her, or by ill usage has driven her from him ; 

{n) Murray v. Elibank, 10 Ves. 84 ; s. c, 13 Ves. 1 ; Lloyd v. Williams, 
1 Mad. 450 ; Fenner v. Taylor, 2 R. & M. 190; Hodgcns v. Hodgens, 11 
Bli. 62, 103; 4 CI. & F. 323, 371 ; Lloyd v. Mason, 5 Hare 149. 

(o) Wright y. Morley, 11 Ves. 12, 18; Elliott v. Cordell, 5 Mad. 149; 
Stanton v. Hall, 2 R. & M. 175, 180 ; StiflFe v. Everitt, 1 M. & C. 37. 

in obtaining possession of his property by process of law, if she has no 
other means of supporting herself and children, unless a suitable provision 
is allowed her out of it : Van Epps v. Van Deusen, 4 Paige 63. The equity 
to a settlement can only be waived on a privy examination by a commis- 
sioner appointed for the purpose. A transfer acknowledged before an 
ordinary commissioner out of the state, will not be enough : Coppidge r. 
Threadgill, 3 Sneed 577. 



144 ADAMS's DOCTRINE OF EQUITY. 

or if he lias become incapable of maintaining her, as by 
his bankruptcy or by an assignment of all his property in 
trust for creditors, an immediate provision will be directed. 
In this case it is immaterial whether the wife's interest 
is for life only, or .of a more permanent character 5^ and 
it is competent for the Court to settle such a proportion 
on her as the circumstances require, or even to settle the 
entire income, if the husband has already received other 
portions of her fortune. If the desertion be on the part 
of the wife, the Court will give her no benefit from the 
fund ; but it has been held that, as the husband does not 
in fact maintain her, he cannot be entitled to the whole 
property, and the dividends therefore should be paid into 
Court. (;?)2 

3. The equitable ownership is governed by the same 
laws of devolution and transfer as the legal one. 
r*501 *The maxims therefore of the common law as 
to descent, possessio fratrts, customs of gavelkind 
and borough English, and the like, have been always en- 
forced by analogy in equity, subject however to an excep- 
tion in the case of dower, which we shall presently notice. 
A trust estate may be entailed or otherwise settled by the 
owner, and will devolve regularly in the line of entail ; it 
might, until the late statute, be again disentailed by a fine 
or recovery, and may now be disentailed by a statute deed, 
in the same manner as a legal estate. But a trust of realty 

{p) Ball V. Montgomery, 2 Ves. Jun. 191 ; Duncan w. Campbell, 12 Sim. 
616 ; Gardner v. Marshall, 14 Sim. 575. 

' This is overruled with regard to a purchaser for value of a life interest 
of the wife ; and no equity to a settlement arises in such case whether the 
husband maintain her or not : Tidd v. Lister, 3 De G., M. & G. 857 ; afiPg 
8. c. 10 Hare 157. 

* Though see as to adultery. Greedy v. Lavender, 13 Beav. 62 ; Carterv. 
Carter, 14 Sm. & Marsh. 59. 



ORDINARY AND CHARITABLE TRUSTS. 145 

is not liable to escheat ; for escheat is merely an incident 
of tenure, arising out of the feudal system, whereby the 
escheated estate on the death without heirs of the person 
last seised escheats to the lord as reverting to the original 
grantor, there being no longer a tenant to perform the 
services incidental to the tenure. It is therefore inappli- 
cable to estates which do not lie in tenure, such as rents, 
commons, &c., and is equally inapplicable to an equitable 
estate. If the line of descent fails by the death of the 
cestui que trust w'ithout heirs, the trustee will have the 
enjoyment as the legal owner, for there is no one who can 
sue a subpoena against him. (5')^ If the descent fails by 
attainder, there appears to be some doubt as to the posi- 
tion of the trustee, as to his right of holding against the 
felon if pardoned, or against his heir if the felon be exe- 
cuted. The forfeiture to the Crown by attaint of treason 
has been specially extended by statute to trusts, (r) And 
where a trust of land is declared for an alien, the Crown 
is entitled, as in the case of a legal estate ; for the inca- 
pacity *of an alien is not an incident of tenure, but r^r -1 -i 
a result of public policy, which disables an alien 

[q) On the subject of the escheat and forfeiture of trust estates and the 
respective rights of the Crown and trustee on the death of the cestui que 
trust without heirs or his attainder : vide Burgess v. Wheate, 1 Eden Ch. 
Cas. 177 ; [Sweeting v. Sweeting, 33 L. J. Ch. 211 ;] Onslow v. Wallis, 1 
Macn. & Gord. 506. 

(r) 33 lien. 8, c. 20, s. 2 ; 1 Hale P. C. 248 ; but see King v. Dacombe, 
Cro. Jac. 512. In case of the death of a trustee or mortgagee without 
heirs, or his attainder, it is provided by a recent statute, 4 & 5 Wm. 4, c. 
23, that no lands, chattels or stock, vested in such person, upon any trust, 
or by way of mortgage, shall escheat or be forfeited, but shall be conveyed 
by the Court of Chancery, as the case may require. 

' It may well be doubted whether this proposition would hold under the 
statutes of distribution in the United States generally. See Matthews v. 
Ward, 10 Gill & John. 443 ; Darrah v. McNair, 1 Ashm. 236 ; 4 Kent's 
Com. 425. 
10 



146 ADAMS's DOCTRINE OF EQUITY. 

from purchasing except for the king's use.^ In the case 
of chattels, whether real or personal, the doctrine of es- 
cheat has no place, but if the cestui que trust die intestate 
and without leaving next of kin, his interest vests in the 
Crown as lona vacantia, and if he he convicted of treason 
or felony, it has always been deemed forfeitable to the 
Crown, {i) 

The subjection of equitable estates to the legal rules of 
devolution and transfer admits of two exceptions : the one 
real, in their exemption from dower,^ the other apparent, 
in the attendance of satisfied terms on the inheritance. 

The right of a widow to dower at common law was a 
right to have a third part of her husband's freehold lands 
of inheritance assigned to her for her use, on his decease, 
for her life. And as the right was given as a matter of 
general policy, it might have been expected that Courts 
of equity, following the policy of the law, would have 
annexed the same right to an equitable estate. It was, 

[s] 1 Steph. Bl. 401,443-, 4 Id. 446; Att.-Gen. v. Sands, Freem. 130; 
Lewin on Trustees 556 ; Burgess v. Wheate, 1 Eden 177 ; Williams v. 
Lonsdale, 3 Ves. 752 ; Taylor v. Hagarth, 14 Sim. 8 ; [Cradock v. Owen, 2 
Sm. &Giff. 241."! 

^ Barrow v. "Wadkin, 24 Beav. 1. See, however, Rittson v, Stordy, 3 Sm. 
& Giff. 230. 

^ The general principle is, that at common law a wife was not entitled to 
dower in a trust estate : Stevens v. Smith, 4 J. J. Marsh. 64 ; Danforth v. 
Lowry, 3 Heywood 61 ; Ilerron v. Williamson, 6 Litt. Sel. Cas. 250 ; Lenox 
V. Notrebe, 1 Hempst. 251. Though in some of the states, as in Kentucky 
and Virginia, special statutes have been enacted, relieving the wife from 
this disability : Stevens v. Smith, before cited, and Braxton v, Lee, 4 Hen. 
& Munf. 376. 

By the usage and law of Pennsylvania, a woman is entitled to dower in 
a trust estate : Shoemaker r. Walker, 2 S. & R. 554 ; Dubs v. Dubs, 31 
Penn. St. 149. 

See Williams on Real Property, 229, note, and post, note to page 233, 
234. 



ORDINARY AND CHARITABLE TRUSTS. 147 

however, decided otherwise : and the reason assigned is, 
that long before the question was raised, a general im- 
pression had prevailed that the widow would be barred by 
trust, and that many estates had been purchased on the 
faith of this opinion, the titles to which would be shaken 
and much mischief produced, by a decision to the con- 
trary. And, on this ground of anticipated inconvenience, 
whether a judicious one or not, the decision in question 
was made, (t) The point is worth noticing, as having for 
many years been an anomaly in the doctrines of equity. 
But by the passing of the Dower Act,{u) which abolishes 
the distinction in this respect between legal and equitable 
estates, *and at the same time gives to the hus- r*Ko-| 
band a control over his wife's dower, which pre- 
viously he did not possess, it has ceased to be of much 
practical importance. 

The exception in respect to attendant terms is rather 
apparent than real. It frequently happens that long terms 
of years are created in real estates, for securing moneys 
lent on mortgage, for raising jointures and portions for 
children, and for other special trusts; and that after the 
fulfilment of the trust, the terms continue in existence. 
It might prima facie be supposed, that so long as the legal 
term subsists, the trust under it is in the nature of a 
chattel, and will devolve to the executor and not to the 
heir. But the rule is rightly otherwise. For the trust 
of the term, under these circumstances, is not for any in- 
dividual person, but for the owner of the inheritance, 
whoever he may be. This would be the effect if a sur- 
render were compelled; and the mere absence of a legal 
surrender does not change the effect in equity. In ac- 

{t) D'Arcy v. Blake, 2 Sch. & L. 387. 
(u) 3 & 4 Wm. 4, c. 105. 



148 ADAMS's DOCTRINE OF EQUITY. 

cordance with this principle, a term may be made attend- 
ant, either by implication of law, where the effect of a 
surrender would be immediate merger, or by express de- 
claration of the parties. And the trust of such attendant 
term will follow the descent of the inheritance, and the 
conveyances, assurances, and charges of the owner. It 
may, however, be afterwards disannexed by the owner 
and converted into a term in gross ; and it will be so dis- 
annexed whenever it fails of a freehold to support it, or 
is divided from the inheritance by distinct limitations, (i') 
The effect of getting in an attendant term, where two pur- 
chasers or encumbrancers are contending for priority, will 
be hereafter considered under a different head.(w) 

The doctvme{ww) of attendant terms will shortly be- 
come of little importance; for, by 8 & 9 Vict. c. 112, it is 
enacted that every term of years which on the 31st Dec. 
p5j,rq-| 1845, ^should be attendant on the inheritance, 
should cease and determine on that day, except for 
the purpose of any protection which it would have afforded 
if it had continued to exist, but had not been assigned or 
dealt with after that day ; and that every term which after 
that day should become attendant, should immediately on 
its becoming so attendant cease and determine. 

The means by which an equitable ownership is trans- 
ferred or changed, where its subject-matter is personal 
estate, are analogous to those which apply to a legal 
ownership, rather than strictly identical with them. The 
distinction originates in the doctrine that personal property 
passes at law by mere delivery, which where an equitable 

(») Willoughby v. Willoughby, 1 Term Rep. 763 ; C».pel v. Girdler, 9 
Ves. 509 ; 3 Sug. V. & P. 10th edit. c. 15. 
(w) Infra, Priorities. 
[ww) See the case of Doe d. Clay v. Jones, 13 Q. B. 774. 



ORDINARY AND CHARITABLE TRUSTS. 149 

interest is transferred, may not be practicable; and there- 
fore in order to pursue as nearly as possible the analogy 
of law, it is required that the assignment of an equitable 
interest should be perfected by notice to the trustee, so 
as to deprive the assignor of subsequent control, and to 
effect a constructive delivery to the assignee, (.r)^ It is 
otherwise with respect to real estate; for real estate 
passes by title, and not by delivery, and the character of 
the grantor's interest, whether legal or equitable, does 
not affect the terms of his deed. The period at which 
the transfer of an equity becomes complete is often ma- 
terial to be considered, where such transfer has been 
made without consideration, or where several purchasers 
or encumbrancers have acquired conflicting rights ; but 
its effect in these cases will be hereafter separately con- 
sidered. (^) 

The principle of constructive delivery by notice to the 
trustee is applied also to a debt or other chose in action. 
The right of recovering such an interest, like that of en- 
forcing a trust, is in strictness merely a right of litigation ; 
and except in the case of negotiable securities, is not 
capable of transfer at law. But if it be in substance a 
right *of property, it is treated in equity as of that r*;^4-| 
character, and may be transferred by an assign- 

{x) Dearie r. Hall, 3 Rues. 1 ; Foster v. Cockerell, 3 CI. & F. 456 ; Jones 
r. Jones, 8 Sim. 633 ; Wilmont p. Pike, 5 Hare 14 ; [Voyle v. Hughes, 2 
Sm. & Giff. 18 ; see Kekewich v. Manning, 1 De Gex, Macn. & G. 176 ; 
Stocks V. Dobson, 4 Id. 11 ; Hill on Trustees 140 and 698, 4th Am. ed.] 

(y) Infra, Priorities. 



^ In the United States, however, notice is not generally held necessary 
to perfect the assignee's title : U. S. v. Vaughan, 3 Binn. 394 ; Muir v. 
Schenck, 3 Hill 228 ; Littlefield v. Smith, 17 Maine 327 ; Warren r. Cope- 
lin, 4 Mete. 594 ; contra, Vanbuskirk v. Ins. Co., 14 Conn. 145. Though 
a payment without notice is, of course, good. 



150 ADAMS's DOCTRINE OF EQUITY. 

merit or agreement to assign perfected by notice to the 
party liable. If the right is not substantially a title to 
property, but a mere litigious right, as, for instance, the 
right of action for a personal wrong, or for suing in equity 
to redress a fraud,, it cannot be made the subject of as- 
signment ; for the transaction would be directly adverse 
to the policy of the law, which prohibits the encourage- 
ment of litigation, by the introduction of strangers to 
enforce rights which the owners are not disposed to 
maintain. (0) 

The regular mode of transferring a debt is by an in- 
strument purporting to assign it, accompanied by a power 
of attorney to sue in the name of the assignor, and fol- 
lowed by notice to the party from whom the assignor is 
to receive payment. There is not, however, any special 
form necessary, but any declaration, either by writing or 
word of mouth, that a transfer is intended, will be effect- 
ual, provided that it amount to an appropriation to the 
assignee ; for inasmuch as the fund is not assignable at 
law nor capable of manual possession, an appropriation is 
all that the case admits. («) 

Possible and contingent interests are also to a certain 
extent assignable in equity,^ on the same principle as 

(z) Prosser r. Edmonds, 1 Y. & C. Exch. 481 ; Wood v. Downes, 18 
Yes. 120 ; Hunter v. Daniel, 4 Hare 420. [See American note to Row i'. 
Dawson, 2 Lead. Cas. Eq. 612.] 

(a) Gardner v. Lachlan, 4 M. & C. 129 ; Thompson v. Speirs, 13 Sim. 
469; Burn v. Carvalho, 4 M. & C. 690; Cook v. Black, 1 Hare 390; 
McFadden v. Jenkyns, Id. 458 ; 1 Ph. 153 ; Malcolm v. Scott, 3 Hare 39, 
52; Braybrooke v. Meredith, 13 Sim. 271. 

^ The student will find a very clear statement of the difiFerence between 
assignments of future and contingent interests in equity and at law, in the 
opinion of Lord Chan. Westbury in Holroyd v. Marshal, 10 H. L. Cas. 191 ; 
see also, Hart v. The Farmers' Bank, 33 Yerm. 252 ; Stover v. Eycleshimer, 
46 Barb. 84 ; Pennock v. Coe, 23 How. 117 ; Bayler v. The Commonwealth, 



ORDINARY AND CHARITABLE TRUSTS. 151 

choses in action, although, by reason of their being devoid 
of any substantive or certain character, they were untU 
8 & 9 Vict. c. 106, and in the case of personal estate still 
are, incapable of assignment at law. In this way a con- 
tingent legacy or other interest may be made the subject 
of equitable assignment ; and so also may the freight to 
be earned by a ship on some future vx)yage, although the 
earning of such freight *is at the time of assign- r:5:^r-| 
ment a mere expectant possibility. (^) There is 
however, a distinction between choses in action and pos- 
sibilities in personalty with respect to the completion of 
an equitable transfer. In the case of choses in action, 
the transfer may be completed, as we have already seen, 
by a constructive delivery ; but in the case of possibilities, 
the interest, though a substantial one, is for the time being 
non-existent, and there are no means of perfecting the 
possession by notice or otherwise, but the contract re- 
mains in fieri until the contingency determines, (c) 

The next subject for notice is the legal ownership of 
the trustee, which confers on him at law an absolute do- 
minion, but is considered in equity as subservient to the 
trust ; so that the trustee is bound to use it for those 
purposes, and those only, which were contemplated by 
the grantor : to account for and protect the property 
whilst the trust continues ; to restore it to the parties 
entitled when the trust is at an end; and not to avail 
himself of his fiduciary character for any object of per- 
sonal benefit. 

(6) Langton v. Horton, 1 Hare 549. 

(c) Meek v. Kettlewell, 1 Hare 464 ; 1 Ph. 342. [See, however, contra, 
Kekewich v. Manning, 1 De G., M. & Gord. 176.] 

40 Penn. St. 37; Hill on Trustees 44; see on this subject, Mitchell v. 
Winslow, 2 Story 630; Letcher v. Shroeder, 5 J. J. Marsh. 513 ; Varick v. 
Edwards, 1 Hoff. Ch. 382 ; Merriweather v. Herran, 8 B. Monr. 162. 



152 ADAMS's DOCTRINE OF EQUITY. 

A trustee is bound to use his legal dominion for those 
purposes, and those only, which were contemplated by 
the grantor.^ If, for instance, he is trustee for sale of an 
estate, he must not sell unless there be a legitimate object 
in view ; and, when he does sell, he must take care that 
the interests of all his cestuis que trust are duly consulted, 
and that all prudent precautions are taken for obtaining 
the full value, (c?)^ If he is a trustee of renewable lease- 
holds, he must be careful that the renewals are made in 
the usual course, and the requisite funds provided for that 
purpose, (e) If he is a trustee of money secured by cove- 
p5j.K^-| nant, *or of other outstanding property, he must 
realize or secure it with all convenient speed. (/) 
And if he is trustee of moneys for the purpose of invest- 
ment, he should invest them in three per cent, consols as 
the fund sanctioned by the Court, or on such other securi- 

[d) Ord V. Noel, 5 Mad. 438 ; Mortlock v. Buller, 10 Ves. 292, 308 ; Wil- 
kins V. Fry, 1 Meriv. 244, 268 ; 2 Sug. on Powers 486. [See for American 
authorities on powers of sale, notes to Hill on Trustees, 4 Am. ed., 735.] 

[e) Lord Montfort v. Lord Cadogan, 17 Ves. 485 ; Greenwood v. Evans, 
4 Bea. 44 ; Shaftesbury v. Marlborough, 2 M. & K. Ill ; Bennett v. Col- 
ley, 2 M. & K, 233. 

[f) Maitland v. Bateman, 13 Law Journ. 273. 

^ A sale made under a deed of trust, after the debt secured by it has 
been fully paid, is void, there being no valid subsisting power under the 
deed : Penny ». Cook, 19 Iowa 538. 

^ The sale must be effected within a reasonable time : Walker v. Shore, 
19 Ves. 387 ; but it must not be hastened to a disadvantage : Hunt v. Bass, 
2 Dev. Eq. 297 ; and the court, on proper cause shown, will give a trustee 
leave to delay a sale : Morris v. Morris, 4 Jur. N. S. 802-964. As a general 
rulQ.,the sale should be at auction, although it is not absolutely essential, 
and private sales are now allowed and regulated by statute in England and 
in some of the United States as in New York and Pennsylvania. Where, 
however, the trust instrument expressly requires a public sale, that method 
must be adopted : Greenleaf v. Queen, 1 Peters 145. A power of sale will 
not authorize an exchange : Ringgold v. Ringgold, 1 H. & G. 11. 



ORDINARY AND CHARITABLE TRUSTS. 153 

ties, if any, as are authorized by his trust ;^ and should at 
the same time execute a declaration of trust, so that in 
the event of his bankruptcy or insolvency the fund may 
be identified. (gY If there be an express power to lend 
on personal security, it will of course warrant a loan to a 
responsible person on his mere bond or promissory note ; 
but such a loan would not be warranted by an authority 
to adopt such security as the trustee shall think safe ; (h) 
nor would a power to lend generally on personal security 
authorize an advance to a trader by way of accommoda- 
tion, or a loan to one of the trustees themselves. (?) If 
the fund is already outstanding^on personal security, but 
no authority is given to leave it so, the trustee is bound 

{g) Clough V. Bond, 3 M. & C. 496 ; Stickney v. Sewell, 1 M. & C. 8 ; 
Ames V, Parkinson, 7 Bea. 379. 

ih) Bullock V. Wheatley, 1 Coll. 130; Styles v. Guy, 4 Y. & C. 571, in 
note ; Walker c. Symonds, 3 Sw. 1, 62. 

(z) Langston v. Ollivant, Coop. 33 ; v. Walker, 5 Russ. 7. 

^ Where trust funds are directed by will to l)e invested in certain securi- 
ties, and such securities cannot be purchased, the trustee may invest in 
such a manner as shall seem to him safe and productive : Mclntyre r. 
Zanesville, 17 Ohio 352. Qucere, if he can without applying to the court 
for authority. 

' Investments by trustees are generally regulated both in England and 
in this country by statute. See Hill on Trustees 560-561, in notes. The 
investment of trust funds in personal security is a breach of trust: Nyce's 
Estate, 5 W. & S. 254 ; Wills' Appeal, 22 Penn. St. 330 ; Smith r. Smith, 
4 John. Ch. 281 ; De Jarnette r. De Jarnette, 41 Ala. 708. Massachu- 
setts appearing to be the only state in which this rule does not obtain : 
Lovell V. Minot, 20 Pick. 119; Clark v. Garfield, 8 Allen 427. Trustees 
are chargeable with interest if they have made use of the money them- 
selves, or have been negligent in not paying it over, or properly investing 
it : Bruner's Appeal, 57 Penn. St. 46. If the fond is directed to be in- 
vested at a specified time, it is to be considered as invested at that time, 
and bearing interest from that date : Halsted v. Meeker's Ex'rs, 3 Green 
(X. J.) 1.36. And in some cases they are chargeable with compound in- 
terest. The authorities on this subject will be found collected in the notes 
to Hill on Trustees, pp. 570-571, 4th Am. ed. 



154 ADAMs's DOCTRINE OF EQUITY. 

to call it in and make a proper investment. If, however, it 
is invested on an actual security, the trustee is not bound 
to call it in for the mere purpose of reinvestment in consols, 
unless a direction to that effect is contained in the instru- 
ment, or is deducible by implication from the character of 
the trusts. A question as to what will amount to such 
an implied direction has frequently arisen where property 
of a less safe or less permanent character than the regular 
investment of the Court, and therefore yielding a larger 
immediate income, such as leasehold estates, or foreign 
funds, has been bequeathed for life with remainder over. 
The general principle is, that a gift of the kind implies a 
r*f;7-| *conversion into three per cent, consols, unless 
there be something in the language of the wiU 
pointing to a continuance in specie. (^")^ 

A trustee is bound to account for and protect the pro- 
perty whilst his trust continues.^ It is one of his principal 

{k) Howe V. Lord Dartmouth, 7 Ves. 137 ; Pickering v. Pickering, 4 M. 
& C. 289 ; Hinves v. Hinves, 3 Hare 609 ; Pickup v. Atkinson, 4 Hare 
624 ; Mills V. Mills, 7 Sim. 501 ; 1 Jarm. on Wills, 546. 

^ See a discussion of this question in Hill on Trustees, 4th Am, ed. 597. 
and American notes, and particularly Scholefield v. Redfern, 32 L. J. Ch. 
627. In this country the rule of duty for a trustee in investing funds for 
the benefit of his cestui que trust is, that he is bound to observe the limits 
prescribed by the terms of the trust, or fairly implied from its nature 
and objects ; and in selecting an investment within those limits, he is 
bound to employ such diligence and such prudence in the care and man- 
agement of the fund, as, in general, prudent men of discretion and intel- 
ligence employ in their own affairs. This necessarily excludes all specu- 
lation, and every investment for an uncertain and doubtful use in the 
market. For it does not follow, that because prudent men, in investing 
their own funds, often take the hazard of adventures with the hope of 
growing rich ; therefore a trustee may do so : per Woodruff, J., King v. 
Talbot, 40 N. Y. 76! All that a court of equity requires from a trustee is 
common skill, common prudence, and common caution: Neff's Appeal. 57 
Penn. St. 91. 

* If trustees either use or mix trust funds with their own, they will be 
liable for all losses which may arise from their neglect or mismanagement: 
Case V. Abeel, 1 Paige 393; Brackenridge W.Holland, 2 Blackf. 377; 



ORDINARY AND CHARITABLE TRUSTS. 155 

and most important duties that he should keep regular 
and accurate accounts, clearly distinguishing the trust 
property from his own, and showing all his receipts and 
payments in respect of it; and that he should be always 
ready to produce those accounts to his cestui que trust. {I) 
It is also a most important duty that he should protect 
the property confided to him whilst the trust continues, 
and should for that purpose retain the control of it in his 
own hands. And it has been doubted whether he is even 
warranted in devising the estate, so as to break the des- 
cent to his heir, and whether, by so doing, he may not 
render his executors responsible for any breach of trust 
by the devisee. (?w)^ 

(Z) Pearse v. Green, 1 J. & W. 135 ; Freeman v. Fairlie, 3 Merir. 24, 42. 
(m) 1 Jarm. on Wills, 638 ; 2 Id. Appendix. 

Myers v. Myers, 2 McC. Ch. 265; Utica Ins. Company r. Lynch, 11 
Paige 520 ; Mumford v. Murray, 6 John. Ch. 1 ; Hart v. Ten Eyck, 2 Id. 
513 ; Marine Bank r. Fulton Bank, 2 Wal. (S. C.) 252; Stanley's App., 8 
Penn. St. 431 ; .Jenkins v. Walter, 8 Gill & J. 218 ; Pennell r. Deffell, 4 
De G., M. & G. 372 ; Frith v. Cartland, 34 L. J. Ch. 301 ; Hill on Trustees 
575, note. 

So guardians and trustees may be called to account by infants, and may 
be required to bring the trust-moneys into court, and to give further secu- 
rity to account when the infants become of age : Monell r. Monell, 5 John. 
Ch. 297. Though if a trustee or an executor be robbed of trust-money, 
it is a good answer to a bill for an account : Furman v. Coe, 1 Cal. Ca. 96. 

If a trustee permit a debtor to retain possession of a trust estate, waste, 
and use it as his own, he will be held responsible for the injury to the 
trust fund out of his own estate : Harrison v. Mock, 10 Ala, Rep. 185. 

It has been settled in England, after some fluctuation in authority, that 
where trustees have a discretion to invest either in stock or real securities, 
and neglect to make any proper investment, they are chargeable only with 
the amount of the principal sum and interest, and not with the value of 
the stock they might have bought. See Robinson r. Robinson, 1 De G., 
M. & G. 256, in which case Watts '». Girdlestone, 6 Beav. 188 (where a 
contrary doctrine had been held) was overruled, and the earlier case of 
Marsh v. Hunter, 6 Mad. 295, approved. 

* The tendency of authority in England seems now, however, in favor of 



1?6 ADAMS's DOCTRINE OF EQUITY. 

The duty of retaining the control in his own hands pre- 
cludes the trustee, not only from assigning the property 
altogether to a stranger, but even from conferring on such 
stranger a joint authority with himself.^ It is true that 
in the latter case, he does not actually part with the 
estate, but he enables a third party to interfere with his 
discretion, and 6.efea,ts pro tanto the object contemplated 
by the trust, (w)^ A trustee, however, is not necessarily 
precluded from acting by the agency of others, where 
such a mode of acting is according to the ordinary course 
of business. For instance, he may employ a steward or 
agent ; he may direct moneys to be paid into a bank ; he 
may transmit money by means of bills drawn on respect- 
able parties, and so forth ; and if there has been sufficient 
p^r n-i *ground for his so doing, and he take care to keep 
the fund separate from his own property, he will 
not be answerable for incidental loss.((?)^ 

(n) Salway v. Salway, 4 Russ. 60 ; 2 R. & M. 215. 

(o) Wren v. Kirton, 11 Ves. 377; Massey v. Banner, 1 J. & W. 241 ; 
Clough V. Bond; 3 M. & C. 490 ; Drake v. Kartyn, 1 Bea. 525 ; Matthews 
V. Brise, 6 Bea. 239. 

the validity of such a devise : see Hill on Trustees, 4th Am. ed. 436, note ; 
Fonda v. Penfield, 56 Barb. (N. Y.) 503; Schenck v. Schenck's Ex'rs., 1 
Green (N. J.) 174. Special statutory provisions in some of the United 
States, obviate the necessity of this discussion. 

^ A trustee who has only delegated discretionary power cannot give a 
general authority to another to execute such power, unless he is specially 
authorized to do so by the deed or will creating the trust ; and when an 
estate is devised with power to sell, a general authority to an agent to sell 
and convey lands belonging to the estate, or to contract absolutely for the 
sale of such lands, cannot be legally given by the trustees : Hawley v. 
James, 5 Paige 323 ; Berger v. DuflF, 4 John. Ch. 368 ; Black v. Erwin, 
Harper's Law 411 ; though see Sinclair v. Jackson, 8 Cowen 582. In 
some states the power of trustees to a(?t by attorney has been enlarged by 
statute; such is the case in Tennessee and Pennsylvania. 

2 Sugden v. Crossland, 3 Sm. & GifiF. 192. 

' Sinclair v. Jackson, 8 Cowen 532 ; Hawley v. James, 5 Paige 487. 



ORDINARY AND CHARITABLE TRUSTS. 157 

The same principle which prohibits a trustee from 
giving up the control of the trust estate to a stranger, 
also prohibits him from supinely leaying it to his co-trus- 
tees. For when several trustees are appointed, the pro- 
perty is committed to the charge of all, and the cestui que 
trust is entitled to the vigilance of all.^ 

It is not meant that in every act done under the trust 
every trustee must actively interfere, for such a course 
would be practically impossible ; and it is therefore the 
ordinary doctrine of the Court, that trustees are respon- 
sible for their own acts only, and not for those of each 
other. If, for instance, there be a sum of money paya- 
ble to several trustees, it is sufficient that one should 



^ Co-trustees are bound to know the receipts, and watch over the con- 
duct of each other: Ringgold v. Ringgold, 1 Har. & Gill. 11. 

In matters requiring the exercise of discretion by trustees, and not in 
mere ministerial acts, co-trustees must all join, and cannot act separately 
in discharge of their trust : Yandever s Appeal, 8 W. & S. 405. 

And it is not sufficient to exempt one of the two joint trustees from 
liability, that the duties of the trust have been exclusively performed by 
the co-trustee, with the concurrence and consent of the former. On the 
contrary, he is responsible for the conduct and management of his co-trus- 
tee, to whom he has thought proper to delegate his power, in the same 
manner and to the same extent as if they had been executed by himself: 
Maccubbin v. Cromwell, 7 Gill & J. 157; Spencer v. Spencer, 11 Paige 
299 ; but see 3 Ala. 83 ; 3 Sandf. Ch. 99. 

So when by the act of one trustee, a portion of the trust fund gets into 
the hands of his co-trustee, they are both responsible therefor : Graham v. 
Davidson, 2 Dev. & Bat. Ch. 155. But a trustee is not liable for money 
received by his co-trustee, in the regular disckarge of the trust, though he 
join in a receipt ; but where he joins in a receipt for money received by 
his co-trustee, when he had no right to receive it, he will be liable : Wallis 
V. Thornton, 2 Brock. 422 ; see also Monell v. Monell, 5 John. Ch. 296. 

The common law made no provision for the execution of a joint trust by 
one of the trustees, where the co-trustee, by reason of lunacy or other 
inability, becomes incompetent to execute the trust : In the matter of 
Wadsworth, 2 Barb. Ch. 381. But by special statute, the court may 
remove the incompetent trustee, as in the state of New York : Ibid. 



158 ADAMS's DOCTRINE OF EQUITY. 

actually receive it ; and, unless it be afterwards impro- 
perly left in his hands, the co-trustees will not be re- 
sponsible. Nor will their position in this respect be 
altered by their being parties to a joint receipt for the 
sake of conformity, unless the money be improperly 
raised, or there be some other independent act of miscon- 
duct ; because, as no single trustee has any separate 
authority, the receipt would not be valid Avithout the sig- 
nature of all. It is otherwise in regard to executors;^ 
for the receipt of one is a valid discharge; and, therefore, 
if all join, it is treated, in the absence of special circum- 
stances, as an admission that the money was under the 
control of all.(jt?)^ 

[p] Brice v. Stokes, 11 Ves. 319 ; Walker v. Symonds, 3 Sw. 1, 64 ; Joy 
V. Campbell, 1 Sch, & L. 328, 341 ; Gregory v. Gregory, 2 Y. & C. Exch. 
313. 

^ In some cases, in the United States, it has been held, that this distinc- 
tion as to executors had been now broken down : Stell's App., 10 Penn. St. 
152 ; Ochiltree v. Wright, 1 Dev. & Batt. Eq. 336. 

^ The liability of joint trustees for each other's acts has not always been 
enforced with as great strictness in the United States as in England. The 
rule has been most frequently stated to be that each is responsible only for 
his own acts, and not for the acts of the others, unless he has made some 
agreement by which he has expressly agreed to be bound for the other, or 
has by his voluntary connivance, enabled one or more to accomplish some 
known object in violation of the trust. A joinder in receipts, though primd 
facie, is not, as in the case of executors, conclusive evidence of an interest 
to be jointly bound, but may be explained. Wherever it is necessary and 
convenient for the purpose of the trust, that a part or all of the business 
should be intrusted to one op more of the co-trustees, the others not cog- 
nisant of, or concurring in any way in a misapplication of the funds, will 
not be liable therefor ; though see Maccubbin v. Cromwell, 7 G. & John. 
168. If, however, the acting trustee is known to be unfit for the manage- 
ment of the trust, or is suffering under pecuniary embarrassment, the co- 
trustees will be responsible, if they permit money to be received by him or 
to remain in his hands. And, if a trustee who has actually received money 
or securities, pays or assigns them to his colleagues without necessity, he 
will become liable for their misconduct. With regard to the effect of a 



ORDINARY AND CHARITABLE TRUSTS. 159 

The cases, however, in which joint trustees may 
permit some of their body to act in the management 
without themselves incurring personal liability, are very 
different from those where a trustee so conducts himself 
as to throw the whole *trust fund jntothe hands of r^^-q-i 
his colleagues, and to abandon the interests which 
it is his duty to protect. Any conduct of this latter 
kind is a dereliction from duty, and will make him re- 
sj)onsible for consequent loss. If, for instance, he volun- 
tarily aid his co-trustees to commit a breach of trust; if 
he neglect to prevent or remedy such breach of trust, 
when it comes to his knowledge ; if he give facilities for 
it, as by suffering his co-trustee to detain the trust-money 
for a long period, without security ; or even if he unne- 
cessarily incur the risk of it by parting with that control, 
which has been intrusted to him ; as by a mutual agree- 
ment between himself and his co-trustee, that one shall 
have the exclusive management of one part of the pro- 
perty, and the other of the other part, he will be charge- 
able for the result of his misconduct or negligence, to the 
full extent of any mischief incurred. (§') 

(g) Booth V. Booth, 1 Bea. 125 ; Broadhurst r. Balguy, 1 N. C. C. 16. 

joinder in sales, which is of course a necessary act, the authorities are not 
agreed, though it has been held in most cases, that the trustees are jointly 
responsible for the collection and investment of the purchase-money. 
Where, indeed, there is an express direction that the trust-fund, or the 
proceeds of a sale, shall be invested in a particular manner, all are bound 
to see such investment made. In any case, however, where a proper invest- 
ment has been once made, the liability of the non-acting trustees ceases. 
It is to be remembered, also, that the innocent trustees are not to be made 
ultimately responsible for the misfeasance or nonfeasance of the others, un- 
less the latter, by reason of insolvency or the like, cannot be reached. The 
American authorities which justify these conclusions will be found in the 
note to Townley v. Sherborne, 2 Lead. Cas. Eq. 718 ; Irwin's Appeal, 35 
Penn. St. 294 ; Hill on Trustees, 2d Am. ed. 470; Story's Eq., sec. 1280, 
&c. See Chandler v. Fillett, 25 L. J. Ch. 505 ; Cottam v. Eastern Counties 
Railroad Co., 1 Johns. & 11. 243 ; Mendes v. Guedalla, 2 John. & H. 259. 



IGO ADAMS's DOCTRINE OF EQUITY. 

If in any case there is a bond fide doubt as to the course 
which, under the circumstances, a trustee should pursue, 
he may obtain directions by a suit in equity at the cost 
of the estate. And a cautious trustee will generally do 
so, whenever a reasonable doubt exists. 

When the trust is at an end, the trustee is bound to 
restore the estate to the parties entitled, and for that 
purpose to make such conveyance as they may require, 
receiving from them a release of his trust, (r)^ 

Lastly, a trustee must not avail himself of his fiduciary 
character for any object of personal benefit. His funda- 
mental duty is to do his utmost for the cestui que trust; 
and every advantage which he appropriates to himself, 
must be acquired by a dereliction from that duty. If, 
therefore, a trustee or executor buy in charges on the 
estate for less than their actual amount, the purchase will 
inure for the benefit of the trust ;(s)^ if a trustee or exe- 
r*A01 ^^^^^7 *holding renewable leaseholds, renew in his 
own name, he cannot hold for himself, even though 
a renewal on the former trusts may have been refused by 
the lessor; (^) and the same result will follow on a renewal 
by a mortgagee or partner, or by a tenant for life ; for 

(r) Goodson v. Ellison, 3 Kuss.- 583 ; Holford v. Phipps, 3 Bea. 434 ; 
Whitmarsh v. Robertson, 1 Y. & C. 715 ; Hampshire v. Bradley, 2 Coll. 34. 

(«) fix i)arte Lacey, 6 Yes. 625 ; Hamilton v. Wright, 9 CI. & F. Ill ; 
Ex parte James, 8 Yes. 337, 345. 

(t) Rumford Market Case, Sel. Ch. Ca. 61 ; James r. Dean, 11 Yes. 383 : 
Randall v. Russell, 3 Meriv. 190. 

' The trustee, however, has no right to insist on such a release, where a 
conveyance is in accordance with the trust ; it is only where he is called 
upon to depart from the tenor of the trust that he can do so : King v. Mul- 
lin, 1 Drewry 300 ; Hill on Trustees, 4th Am. ed. 897. 

'' Greenxi;. Winter, 1 John. Ch. 26 ; Yan Home v. Fonda, 5 Id. 409 ; But- 
ler V. Hicks, 11 Sm. & Marsh. 78 ; Mathews v. Dradaud, 3 Dessaus. 25; 
Irwin V. Harris, 6 Ired. Eq. 221. 



ORDINARY AND CHARITABLE TRUSTS. 161 

although he may not be bound to renew, yet if he does 
renew behind the back of the other parties interested, he 
cannot by converting the new acquisition to his own use, 
derive an unconscientious benefit out of the estate on 
which it is a graft, {u) In like manner it is a breach of 
trust if a trustee employ the trust fund in carrying on a 
trade, or if he deposit it at his bankers, mixed up with 
his own moneys, so as to obtain the credit of an addi- 
tional balance, (e;)^ 

The most obvious instance of the abuse of a fiduciary 
character is, where a trustee for sale or purchase, attempts 
to buy from or sell to himself. The permitting such a 
transaction to stand, however honest it might be in the 
particular case, would destroy all security for the conduct 
of the trustee ; for if he were permitted to buy or sell in 
an honest case, he might do so in one having that appear- 
ance, but which from the infirmity of human testimony, 
might be grossly otherwise. It is not therefore necessary 
to show that the trustee has in fact made an improper 
advantage ; but the cestui que trust, if he has not confirmed 
the transaction with full knowledge of the facts, may at 
his option set it aside. The rule, however, which imposes 
this absolute incapacity, applies to those cases only where 
a trustee attempts to purchase from or sell to himself. 
There is no positive rule that he cannot deal with* his 
cestui que trust. But in order to do so, he must fully 

(m) Stone V. Theed, 2 B. C. C. 243 ; Waters v. Bailey, 2 N. C. C. 219; 
Featherstonehaugh v. Fenwick, 17 Ves. 298. 

(r) Heathcote v. Hulme, 1 J. & W. 122 ; Moons v. De Bernales, 1 Russ. 
301 ; Melland v. Gray, 2 Coll. 295 ; [Royer's App., 11 Penn. St. 36 ; Stan- 
ley's App., 8 Id. 431 ; Jenkins v. Walter, 8 Gill & J. 218.] 

1 See Pennell v. Deffell, 4 De G., M. & G. 372 ; Frith v. Cartland, 34 L. 
J. Ch. 301 ; Commonwealth v. McAlister, 28 Penn. St. 480 ; School v. Kir- 
win, 25 111. 73 ; Kip V. The Bank of New York, 10 John. 65, 
11 



162 ADAMS'S DOCTRINE OF EQUITY. 

divest himself of all advantage which his character as 
r^e-T-i trustee might confer, and *must prove, if the trans- 
actions be afterwards impugned, that it was in all 
respects fair and honest. («c)^ 

(w) Ex parte Lacy, 6 Ves. 625 ; Coles v. Trecothick, 9 Ves. 234, 237 ; 
Ex parte Bennett, 10 Ves. 381 ; Downes v. Grazebrook, 3 Meriv. 200, 208 ; 
2 Sug. V. & P. 10th edi c. xix, s. 2. 

1 Michoud w.Girod, 4 How. U. S. 503 ; Drysdale's Appeal, 14 Penn. St. 
531 ; Winter v. Geroe, 1 Hurlst. Ch. 319 ; Hudson v. Hudson, 5 Munf. 
180 ; Edmonds v. Crenshaw, 1 McCord's Ch. 252 ; Baines v. McGee, 1 Sm. 
& M. 208 ; Baxter v. Costin, 1 Busbce's Eq. (N. C.) 262 ; De Caters ». Le 
Ray de Chaumont, 3 Paige Ch. 178 ; Child v. Brace, 4 Id. 309 ; 
Campbell v. Johnston et al., 1 Sandf. Ch. 148 ; Boyd v. Hawkins, 2 Ired. 
Ch. 304 ; Mathews v. Dragaud, 3 Dessaus. 25 ; 1 Gilm. 614 : Davis ». Simp- 
son, 5 Har. & J. 147 ; Richardson v. Jones, 3 Gill & J. 163 ; In the matter . 
of the petition of Oakley et al., 2 Edw. Ch. 478 ; Hawley v. Mancius, 7 
John. Ch. 174 ; Haddix's Heirs v. Iladdix's Adm'rs., 5 Lit. 202 ; Dorsey v. 
Dorsey, 3 Har. & J. 410 ; Breckenridge v. Holland, 2 Blackf. 377 ; Case v. 
Abeel, 1 Paige 393 ; Davoue v. Fanning, 2 John. Ch. 252 ; Churchill's 
Heirs v. Akin's Adm'rs., 5 Dana 481 ; Torrey v. Bank of Orleans, 9 Paige 
650; Remick v. Butterfield, 11 Foster 70; Lenox r. Lotrebe, 1 Ilempst, 25; 
Lefevre v. Laraway, 22 Barb. 167 ; Blauvelt v. Ackerman, 20 N. J. Eq. 141 ; 
Washington, &c., Railroad Co. v. Alexander Railroad Co., 19 Gratt (Va.) 
592 ; Renew v. Butler, 30 Ga. 954 ; Sypher v. McHenry, 18 Iowa 232. A 
trustee incompetent to purchase on his own account, cannot purchase as 
agent for a third person: Hawley v. Cramer, 4 Cow. 717; North Balti- 
more, &c.. Association v. Caldwell, 25 Md. 420. Nor can a third person 
purchase in trust or as the agent for the trustee : Hunt v. Bass, 2 Dev. 
Ch. 292; Michoud V. Girod, ut supr. ; Paul v. Squib, 12 Penn. St. 296; 
Buckles V. Lafferty, 2 Rob. (Va.) 292 ; Lewis v. Hillman, 3 H. Lords 
Cases 629. But in Beeson v. Beeson, 9 Penn St. 280, it was held that a 
purchase by a trustee through a secret agent was not absolutely void, 
unless there were actual fraud. And if the trustee purchase a mortgage 
or judgment, which is a lien on the trust estate, at a discount, he will not 
be allowed to turn the purchase to his own advantage : Green v. Winter, 
1 John. Ch. 27 ; see also, Boyd v. Hawkins, 2 Dev. Ch. 195 ; Van Home 
V. Fonda, 5 John. Ch. 409. And it seems a trustee may not purchase 
the trust property for his own benefit, when it is sold under a judicial 
decree, which he was not instrumental in procuring, unless by the order 
of sale he was specially allowed so to purchase : Chapin v. Weed, 1 
Clarke 464 ; Beeson v. Beeson, 9 Penn. St. 279 ; Wallingtons Est., 1 



ORDINARY AND CHARITABLE TRUSTS. 163 

The restraint on any personal benefit to the trustee is 
not confined to his dealings with the estate, but extends 

Ashm. 307 ; Ricketts v. Montgomery, 15 Md. 46 ; Jamison v. Glascock, 
29 Missouri 191 ; Bank v. Dubuque, 8 Clarke (la.) 277; Obert v. Obert, 
1 Beas. 423 ; Elliott v. Pool, 3 Jones Eq. 17 ; Hoitt v. Webb, 36 N. Hamp. 
158 5 Chandler v. Moulton, 33 Verm. 245 5 Parker v. Vose, 45 Maine 
54 ; Freeman v. Harwood, 49 Id. 195 ; Martin v. Wyncoop, 12 Ind. 
266. But see, contra, Fisk v. Sarber, 6 W. & S. 18 ; Chorpenninga 
Appeal, 32 Penn. St. 315 ; Elrod r. Lancaster, 2 Head 571 ; Mercer r. 
Newcum, 23 Georgia 151 ; Huger v. Huger, 9 Rich. Eq. 217 ; Earl v. Hal- 
sey, 1 McCart. 332. A trustee permitted to bid at his own sale, must act 
within the strictest line of his responsibility: Cadwalader's Appeal, 64 
Penn. St. 293. 

But a mortgagee of personalty does not fall -within the principle which 
prevents a trustee to sell, from buying at his own sale : Black v. Hair et 
al., 2 Hill Ch. 623. So of a mortgagee generally : Iddings ». Bruen, 4 
Sand. Ch. 223 ; Knight v. Marjoribanks, 2 Macn. & Gord. 10 ; Murdock's 
Case, 2 Bland 461 ; unless with a power of sale : Waters v. Groom, 11 CI. 

6 Fin. 684; Mapps v. Sharpe, 32 Illinois 13; or he buys in without a 
power and without a foreclosure : Gunn v. Brantley, 21 Alab. 633. But 
a second mortgagee may purchase under a power of sale exercised by the 
first mortgagee : Shaw v. Bunny, 34 L. J. Ch. 257 ; 11 Jur. N. S. 99, and 
see Britton v. Lewis, 8 Rich. Eq. 271. And where bona fide creditor after- 
wards becomes a trustee, he may buy in a judgment against a cestui que 
trust, and may pursue all legal remedies to enforce payment of it ; nor has 
the cestui que trust any right to inquire how much the former paid for it : 
Prevost r. Gratz, Peters Ch. 364 ; but see Irwin v. Harris, 6 Ired. Eq. 221. 
If a trustee for creditors sues out a mortgage belonging to the trust, and 
purchases the real estate at such sale in his own name it is as trustee for 
the creditors : Campbell v. McLain, 51 Penn. St. 200. 

A purchase by the trustee, when perfectly fair, made from the cestui que 
trust, or with his assent, under a full knowledge of the circumstances, or 
when subsequently confirmed by him directly or by long acquiescence, 
with such knowledge, will not be set aside by a court of eq*ity : Pennock's 
App., 14 Penn. St. 446 ; Bruch v. Lantz, 2 Rawle 392 ; Harrington v. 
Brown, 5 Pick. 519 ; Dunlap v. Mitchell, 10 Ohio 117; Scott v. Freeman, 

7 Sra. & M. 410 ; Jenison v. Hopgood, 7 Pick. 1 ; Musselmen r. Eshelman, 
10 Penn. St. 374 ; Hawley v. Cramer, 4 Cowen 719 ; Todd v. Moore, 1 
Leigh 457: Villines r. Norflett, 2 Dev. Ch. 167 ; Roberts v. Roberts, 63 N. 
C. 27 ; Boerum v. Schenck, 41 N. Y. 182 ; Cofi'ee v. Ruffin, 4 Cold. (Tenn.) 
487; Carter r. Thompson, 41 Ala. 375; Buell v. Buckingham, 16 Iowa 
284. It has been held, however, that a court of equity will never aid a 



164 ADAMS's DOCTRINE OF EQUITY. 

even to remuneration for his services, and prevents him 
from receiving anything beyond reimbursement of his 
expenses, unless there be an express contrary stipula- 
tion.^ So far as such reimbursement extends, he is 
entitled to claim it in the fullest extent. All payments 
made and liabilities incurred by him, and all his reason- 
able costs, as between solicitor and client, of any suit 
relating to the trust, are to be paid out of the estate, or 
if that should prove deficient, by the cestui que trust 
personally.^ But if the trustee is himself a solicitor, he 

trustee, under any circumstances, to enforce such a purchase, though it 
might refuse to annul it : Monro v. Allaire, 2 Caines' Cas. 183. This 
distinction is unquestionably a valid one in general ; yet it may be 
doubted of the modern authorities. See Hill on Trustees, 4th Am. ed. 249, 
837 ; Salmon v. Cutts, 4 De G. & S. 131. 

See, as to the power of a trustee to purchase the trust fund, if the bene, 
ficiary agree to the purchase : Field v. Arrowsmith, 3 Humph. (Tenn.) 
442 ; and also, Coles v. Trecothick, 9 Ves. 244 ; Lacy, Ex parte, 6 Id. 626 ; 
Henricks v. Robinson, 2 John. Ch. 311. A sale by a trustee to his cestui 
que trust, stands on the same footing as a purchase by a trustee for hia 
cestui que trust, and is void, especially if the trustee has taken any advan- 
tage of the cestui que trust : McCants v. Bee, 1 McCord Ch. 383. 

' The rule under consideration applies only to transactions inter vivos, for 
gifts by vfill always implies bounty, and a trustee may receive a benefit 
under the will of his cestui que trust : Hindson v. Weatherill, 5 De G., M. 
& G. 361 ; Stump V. Gaby, 2 Id. 623 ; though see Waters v. Thorn, 22 Beav. 
547. 

* Expenses incurred unnecessarily and against the remonstrance of the 
cestui que trust will not be allowed : Berryhill's Appeal, 35 Penn. St. 245. 
Trustees are entitled to expense incurred in taking the opinion of counsel 
as to the trust estate: Fearns v. Young, 10 Yesey 184; McElhenny's Ap- 
peal, 46 Penn. St. 347. A trustee is liable for the fraud of his solicitor, 
although he may have used ordinary discretion in employing him : Bos- 
tock V. Floyer, L. R. 1 Eq. 26 ; Sutton v. Wilder, L. R. 12 Eq. 373 ; and 
also for his negligence : Hopgood v. Parkin, L. R. 11 Eq. 74. 

Whether the trustee, however, can claim compensation or not, he is en- 
titled to be fully reimbursed for all expenses incurred and responsibilities 
assumed in the management of the trust : Towle v. Mack, 2 Verm. 19 ; 
Green v. Winter, 1 John. Ch. 27 ; Burr ». McEwen, 1 Bald. 154 ; Pennell's 



ORDINARY AND CHARITABLE TRUSTS. 165 

cannot of course charge the trust for his own profes- 
sional services, so as to derive in that form a personal 
benefit. (:r)^ 

If a trustee fail in performance of his trusts, whether 
by exceeding or falling short of its proper limits, the 
cestui que trust is entitled to a remedy in equity. 

We have already seen that, if there be no trustee, or if 
the trustee is desirous to be discharged from his trust, the 
Court of Chancery will undertake the office. If there be 
an existing and acting trustee, who either refuses to per- 
form a particular duty, or threatens to do an unauthorized 

(x) Moore v. Frowd, 3 M. & C. 45 ; Bainbridge v. Blair, 8 Bea. 588. 
Though see Cradock v. Piper, 1 Maen. & Gord, 668. [Cradock v. Piper, 
was disapproved in Broughton v. Broughton, 5 De G., M. & G. 160. See 
also, Lyon v. Baker, 5 De G. & Sm. 622 ; Mayer v. GuUuchat, 6 Rich. Eq. 
1 ; Clack V. Carlon, 7 Jur. N. S. 441 and Id. part 2, p. 211]. 

App., 2 Penn. St. 216 5 Morton v. Adams, 1 Strobh. Eq. 76 ; Hatton ». 
Weems, 12 G. & John. 83 ; Morton v, Barrett, 22 Maine 257. And this is 
the case, even though the trust may have been afterwards declared void, 
provided he acted in good faith : Hawley v. James, 16 Wend. 61 ; Stewart 
V. McMinn, 5 W. & S. 1()0. 

^ The rule stated in the text was adopted in some of the earlier cases in 
this country : see Green v. Winter, 1 John. Ch. 37, 38 ; Manning v. Man- 
ning, Id. 532 ; Mumford v. Murray, 6 Id. 17 ; State Bank v. Marsh, Sax- 
ton 288 ; Egbert v. Brooks, 3 Harring. 110 ; Miles v. Bacon, 4 J. J. Marsh. 
457 ; Kendall v. The New Eng. Carpet Co., 13 Conn. 384 ; though com- 
missions might be agreed upon at the creation of the trust: Boyd v. Haw- 
kins, 2 Dev. Ch. 212. 

But now, however, in most of the United States, trustees are allowed 
compensation, either by express statutes or by analogy to compensation 
allowed to executors. Upon the subject of compensation to trustees, see 
Meacham v. Sternes, 9 Paige Ch. 398 ; Ringgold v. Ringgold, 1 liar. & 
Gill. 11 ; Boyd v. Hawkins, 2 Dev. Ch. 329 ; Miller v. Beverleys, 4 Hen. & 
M. 415; Jenkins v. Eldredge, 3 Story 325; Matter of De Peyster, 4 Sandf. 
Ch. 511; Burr v. McEwen, 1 Bald. 163 ; Nathans v. Morris, 4 Wh. 389 ; 
Stehman's Appeal, 5 Penn. St. 413. The cases and statutes on this subject, 
will be found fully collected in the American note to Robinson v. Pett, 2 
Lead. Cas. Eq. 200. 



166 ADAMS's DOCTRINE OF EQUITY. 

act, he may be compelled to act in the one case, or re- 
strained in the other ; ( y) or, if necessary, he may be 
removed altogether from the trust, and another appointed 
in his room, {z) ^ 

If a breach of trust has been committed, the trustee 
P-=fi21 ^^"^ ^^ liable to make good any consequent loss, 
whether immediately resulting from it, or trace- 
able as its effect. And if several trustees have concurred 
in its commission, each of them will, in favor of the cedui 
que trust, be severally liable for the whole loss. But if 
no actual fraud has been committed, a contribution may 
be enforced as between themselves. And if any third 
party has knowingly reaped the benefit of the breach of 
trust, the loss may be eventually cast on him.^ If the 
cestuis que trustent themselves, being sui Juris, have con- 
sented to the act, they cannot afterwards be heard to 
complain of it;' and if some only out of several have so 
consented, the trustees and the other cestuis que trustent 
must be indemnified out of their interest ; nor can the 
trustee waive the right to such indemnity, because it is a 
security, not to himself alone, but to the other cestuis que 
trustent, also to be worked out through him. (a) If, after 
the commission of a breach of trust, the trustee has given 
full and complete information to the cestuis que trustent, 
and they have acquiesced in the existing state of things, 

{y) Kirby v. Marsh, 3 Y. & C. 295 ; Att.-Gen. v. Mayor of Liverpool, 1 
M. & C. 171, 210. 

{z) Att.-Gea. v. Shore, 9 CI. & F. 355 ; Att.-Gen. v. Caius College, 2 
Keen 150. 

(a) Walker v. Symonds, 3 Sw. 1, 75; Wilson v. Moore, 1 M. & K. 127; 
Greenwood v. Wakeford, 1 Bea. 576; Fyler r. Fyler, 3 Id. 550; Woodyatt 
V. Gresley, 8 Sim. 180 ; Fuller v. Knight, 6 Bea. 205. 

^ See note to page 38, ante. 

» Trull ». Trull, 13 Allen (Mass.) 407. 

» Campbell v. Miller, 38 Geo. 304. 



ORDINARY AND CHARITABLE TRUSTS. 167 

and have dealt with the trustee on the footing of that 
acquiescence, the breach of trust will be considered as 
waived, (i) But unless there be acquiescence in the ce»- 
tuis que trustent, the mere lapse of time will not bar the 
liability of an express trustee; for his possession is accord- 
ing to his title.^ It is otherwise with regard to persons 
who, not being themselves express trustees, have acquired 
property with notice of a trust, or have otherwise become 
trustees by construction of equity ; for such persons, 
though bound in equity to perform the trust, are not in 
strictness existing trustees, but are to be constituted trus- 
tees by a decree. Their possession, therefore, in the 
meantime is *adverse to the cestui que trust, and r-^co-i 
if left undisturbed, will ultimately exclude him. (c) 

The extent of the remedy which equity aifords, de- 
pends on the character of the wrong done. There does 
not appear to be any case where the Court has awarded 
damages for mere injury to the estate ; but the trustee 
must account for what he has or ought to have received, 
with interest at four per cent, on moneys improperly re- 
tained, (c?)^ 

(fe) Brice v. Stokes, 11 Ves. 319; Walker r. Symonds, 3 Sw. 1, 64, 67 ; 
Roberts c. Tunstall, 4 Hare 257. [See Hill on Trustees, 4th Am. ed. pp. 
267 and 460, et seq., where the American cases are collected.] 

(c) Beckford v. Wade, 17 Ves. 99 ; Hovenden r. Annesley, 2 Sch. & L. 
633 ; Wedderburn v. Wedderbum, 2 K. 722 ; s. c. 4 M. & C. 41 ; 3 & 4 
Wm. 4, c. 27, 8. 25. 

{d) Ludlow r. Greenhouse, 1 Bligh, N. S. 17, 57; Rocke ». Hart, 11 
Ves. 58 : Tebbs r. Carpenter, 1 Madd. 290. 

^ If, however, there is negligence on the part of the cestui que trust in 
asserting his rights, a court of equity will not, after a long lapse of time, 
render the trustee liable : Bright v. Legerton, 2 De G., F. & J. 606. But 
the breach of trust must be distinctly brought to the notice of the cestui 
que trust ; it is only from the time of such notice that the satutte begins 
to run in favor of the trustee : Hunter r. Hubbard, 26 Texas 537 ; see 
also, New Market v. Smart, 45 X. H. 87. 

* See notes to pages 56, 57, ante. 



168 ADAMS'S DOCTRINE OF EQUITY. 

The giving of interest, however, is merely an imperfect 
method of estimating the indemnity Avhich the cestui que 
trust may claim, and does not preclude the adoption of a 
more accurate rule. If, therefore, the property is at the 
time of the trustee's misapplication actually invested in 
stock, and is improperly sold out by him, or if the trust 
deed contains a direction so to invest it, the amount of 
such stock will be the measure of the indemnity ; and the 
trustee may, at the option of the cestui que trust, be com- 
pelled either to repay the money with interest, or to make 
good the amount of stock which has been improperly sold, 
or which a timely investment would have produced. The 
effect in this respect of an option given by the instrument 
of trust to invest either in stock or real security, but not 
exercised by the trustee, appears to be doubtful, (e) ^ If 
there is also an express direction to accumulate, the re- 
placement may be extended to the amount of accumula- 
tion which would have been produced by a proper invest- 
ment of the dividends. (/) If an improper investment 
has been made, it is considered, as against the trustee 
himself, equivalent to no investment. But in favor of 
r*fi/t1 ^^® *cestui que trust it gives an option to claim 
either the investment made, or the replacement of 
the original fund with interest, according as the one or 
the other may be most for his benefit. (^) 

If there be circumstances of actual malfeasance, as, for 

' [e) Byrchall v. Bradford, 6 Madd. 235 ; Watts v. Girdlestone, 6 Bea. 
188 5 Ames v. Parkinson, 7 Id. 379 ; Shepherd v. Mouls, 4 Hare 500. 
(/) Pride v. Fooks, 2 Bea. 430. 
( g) Lane v. Dighton, Amb. 409 ; Infra, Conversion. 

^ It is now held that the trustee is liable in such case only for principal 
and interest, and not for the value of the stock. See Hill on Trustees, 4th 
Am. ed. 567, in note. 



ORDINARY AND CHARITABLE TRUSTS. 169 

instance, if the trustee has not only neglected to invest 
the fund but has applied it to his own purposes, as by 
using it in his trade, he may be charged with interest at 
five per cent., instead of four. And the same may be 
done where his misconduct has been very gross, as where 
an executor, being directed to lay out property in the 
funds, had unnecessarily sold out stock, kept large bal- 
ances in his hands, and resisted payment of debts by a 
false pretence of outstanding demands. Where the im- 
proper application has produced an ascertainable profit, 
as, for example, where the trust money has been applied 
either solely or as mixed up with other property belong- 
ing to the trustee, in carrying on a trade or other specula- 
tion, the cestui que trust is entitled to claim the profits. 
And with this view he may insist on an account of the 
profits made, so that after they have been ascertained, he 
may have an option to accept either the amount realized, 
or interest at five per cent. (A) ^ 

In some cases, where there has been an express direc- 
tion to accumulate, accompanied by special circum- 
stances of malfeasance, the account has been directed 
in such a form as to charge the trustee with compound 
interest. (^) 

The cost of a suit for rectifying a breach of trust are 
to some extent dependent on the degree of misconduct. 

(A) Tebbs v. Carpenter, 1 Mad. 290; Crackelt v. Bethune, 1 J. & W. 
586 ; Docker v. Somes, 2 M. & K. 655. 

(i) Raphael v. Boehm, 11 Ves. 92 ; 13 Ves. 407, 590 ; Walker v. Wood- 
ward, 1 Ruse. 107 ; Tebbs v. Carpenter, 1 Mad. 290 ; Heighington ». Grant, 
5 M. & C. 258. 

' On the subject of the liability of a trustee to interest, the cases will be 
found collected in Hill on Trustees, 4th Am. ed. 568, in note. See supra 
note to page 56. 



170 ADAMS's DOCTRINE OF EQUITY. 

The general rule seems to be, that if the suit has been 
actually occasioned by the breach of trust, the trustee 
must pay the costs. If a suit were necessary for other 
r*fi^l purposes, *as for administering the estate or con- 
struing the trusts, he may have his general 
costs, as between solicitor and client, notwithstanding 
that it includes a prayer for remedying the effect of his 
misconduct. But he may, at the same time, be com- 
pelled to pay any additional costs, which that misconduct 
occasions.^ 

The jurisdiction for compelling admittance to copyholds 
seems analogous to that for compelling performance of 
a trust. For the copyholder has the beneficial interest 
in the land, and the lord is bound to perfect his title by 
admittance, and to place the evidence of it on the manor 
rolls. But the lord cannot e converso bring his bill 
against the copyholder, to compel him to come in and be 
admitted tenant ; for he has his remedy by seizing the 
land after proclamation made. It is said, too, that if 
there be error in any adversary proceeding in the lord's 
Court, the Court of Chancery will order the lord to ex- 
amine it ; and that if judgment be given in the lord's 
Court on a copyholder's petition, though no appeal or writ 
of error will lie, yet the Court of Chancery will cor- 
rect the proceedings, if anything be done against con- 
science. (^) 

Besides the ordinary trusts which we have just con- 
sidered, there is another class of trusts, those for char- 
itable land public purposes, where the legal ownership is 

{k) Christian v. Corren, 1 P. Wms. 329 ; Clayton v. Cookes, 2 Atk. 449 ; 
Ash V. Rogle, 1 Vern. 367 ; Williams v. Lord Lonsdale, 3 Vcs. 752 ; Wid- 
dowson V. Lord Harrington, 1 J. & W. 532. 

^ See Hill on Trustees, p. 856, et seq., 4th Am. ed. 



ORDINARY AND CHARITABLE TRUSTS. 171 

conferred on a fiduciary holder, but the trust is declared 
for general objects, and not for the benefit of a specific 



* Upon the subject of charitable trusts, bequests for pious and charitable 
uses, and also the doctrine of cy pres, see the following authorities : Bap- 
tist Association v. Hart's Executors, 4 Wheaton 1 ; Inglis v. The Trustees 
of the Sailor's Snug Harbor, 3 Peters 99 ; Trustees of the Baptist Associa- 
tion V. Smith, 3 Peters' Appendix 481 ; Executors of Burr v. Smith et al., 
7 Verm. 241 ; Gallego's Executors v. Attorney -General, and Id. r. Lambert 
and wife, 3 Leigh 450 ; Shotwell's Executor r. Mott et al., 2 Sandf. Ch. 
46; Vidal et al. v. Girard Executors, 2 How. U. S. 127 ; City of Philadel- 
phia V. Girard's Heirs, 45 Penn. St. 9 ; Miller v. Porter, 53 Penn. St. 292. 
Mr. Justice Baldwin, in the celebrated case of Magill v. Brown, which in- 
volved the construction of the will of Sarah Zane (reported in Brightly's 
(Pa.) Nisi Prius Reports, p. 347, &c.) gave to the subject of bequests for 
pious and charitable uses, a most profound investigation, and condensed in 
the elaborate and learned opinion, which he delivered in that cause, all 
the English and American learning upon this most interesting branch of 
equity jurisprudence. In some of the United States, where the Statute of 
43 Elizabeth is not in force, it has been held that the same liberal princi- 
ples as to charitable trusts, were applied in the Court of Chancery at com- 
mon law, independently of that statute ; and that charities within its defi- 
nition or analogies would be enforced, though the beneficiaries are too 
vaguely designated, to claim for themselves that assistance. All that is 
necessary is that a discretion in the application of the funds shall have 
been vested somewhere, by the donor : Vidal v. Girard, 2 How. S. C. 127 ; 
Brown v. Kelsey, 2 Cush. 243 ; Burr v. Smith, 7 Verm. 241 ; King v. Wood- 
hull, 3 Edw. Ch. 79 : Banks v. Phelan, 4 Barb. S. C. 80 ; Shotwell r. Mott, 
2 Sandf. Ch. 46 ; Newcomb v. St. Peter's Church, Id. 636 ; Williams r. 
Williams, 4 Selden 525 ; McCaughal v. Ryan, 27 Barb. 376 ; Bascomb r, 
• Albertson, 34 N. Y. 584 ; Whitman r. Lex, 17 S. & R. 88 ; Zane's Will, 
Brightly 350; McCord v. Ochiltree, 8 Blackf. 15: State ». McGowen, 2 
Ired. Ch. 9 ; Griffin v. Graham, I Hawks 96 ; Att.-Gen. ». Jolly, 1 Rich. 
Eq. 99 ; Beall v. Fox, 4 Geo. 404 ; Wade v. American Col. Soc, 7 S. & M. 
663; Dickson r. Montgomery, 1 Swan (Tenn.) 348; Carter v. Balfour, 19 
Ala. 814 ; Urmey's Executors v. Woodon, 1 Ohio St. N. S. 160 ; White v. 
Fisk, 22 Conn. 31 ; Levy v. Levy, 33 N. Y. 97. In other states, the 
statute has been declared to be still in force : Griffin v. Graham, 1 Hawks. 
96 ; Gass V. Wilhite, 2 Dana 170; Att.-Gen. v. Wallace, 7 B. Monr. 611 ; 
Tainter v. Clark, 5 Allen 66 ; Perin v. Carey, 24 Howard 465 ; Hill on 
Trustees 200, 201, 701. 
In Virginia and Maryland, however, it has been decided that neither the 



172 ADAMS'S DOCTRINE OF EQUITY. 

The meaning of the word charity, as applied to a trust, 
is different from any signification which it ordinarily bears. 

The word in its widest sense denotes all the good affec- 
tions which men ought to bear towards each other; in its 
most restricted and most usual sense, relief of the poor. 

In neither of these senses is it employed by the Court of 
Chancery, but a signification has been affixed to it, de- 
r:^f!:a-\ rived *for the most part from the enumeration 
given in the Statute of Charitable Uses.(^) And 
the purposes enumerated in that act, together with others 
analogous to them, are accordingly considered as the only 
charities which the Court will recognise. 

The purposes enumerated in the statute as charitable 
are "the relief of aged, impotent, and poor people; the 
maintenance of maimed and sick soldiers and mariners; 
the support of schools of learning, free schools, and 
scholars of universities; repairs of bridges, &c.; educa- 
tion and preferment of orphans; the relief and mainte- 
nance of houses of correction; marriages of poor maids; 
help of young tradesmen, handicraftsmen, and persons 
decayed; redemption or relief of prisoners or captives; 
and the aid of poor inhabitants concerning payment of 
fifteenths, setting out of soldiers, and other taxes." These 
are the only uses which the statute in term reaches, but 

{I) 43 Eliz. c. 4. 

statute Dor the principles which it embodies, are in force : Baptist Associ- 
ation V. Hart, 4 Wheat. 1 ; Wheeler v. Smith, 9 How. U. S. 58 ; Gallego v. 
Att.-G'en., 3 Leigh 451 ; Carter v. Wolfe, 13 Grat. 301 ; Dashiell v. Att- 
Gen., 5 Harr. & J. 392; 6 Id. 1; Wilderman v. Baltimore, 8 Md. 551. 

In the recent case of Fontain v. Ravenal, 17 How. U. S. 369, it was held by 
a majority of the court, that the courts of the United States had no inde- 
pendent power to administer the law of charitable uses, whether under the 
Statute of Elizabeth, or otherwise, except so far as it had been adopted 
into the lex rei sitce. 



ORDINARY AND CHARITABLE TRUSTS. 173 

it is not necessarily confined to them ; and gifts, not within 
its letter, have been deemed charitable within its equity. 
Such, for instance, are gifts for religious or educational 
purposes ; for the erection of a hospital or a sessions 
house ; or for any other beneficial or useful public pur- 
pose, not contrary to the policy of the law. But a gift 
merely for useful or benevolent purposes, without specify- 
ing what the purposes are, does not constitute a gift to 
charity ; because there may be many useful or benevolent 
purposes, which the Court cannot construe to be charit- 
able ; a gift also to mere private charity is not within the 
analogy of the statute ; and although there are cases 
where the Court has apparently interfered in favor of 
private charity, yet such cases have in fact been those 
not of gifts to charitable purposes, but of gifts to indi- 
viduals with a benevolent purpose. Such, for example, 
would be a gift to " poor relations." That is not a charity 
in the legal sense of the term, but a trust to give to poor 
relations; and the only question under such a trust is, 
whether the objects are sufficiently specified to enable 
*the Court to execute it, or whether the gift is r^e-r-] 
void on the ground of uncertainty. (»2)^ 

(m) Morice v. Bishop of Durham, 9 Yes. 399, 405 ; 10 Id. 522, 541 ; 
Mitford V. Reynolds, 1 Ph. 185; Nash r. Morley, 5 Bea. 177; Kendall v. 
Granger, 5 Id. 3<X) ; Townsend v. Carus, 3 Hare 257 ; Nightingale v. 
Goulburn, 5 Hare 484 ; 1 Jarm. on Wills 192. 

^ See Saltonstall v. Sanders, 11 Allen 446. A charity is a gift to be ap- 
plied consistently with existing laws, for the benefit of an indefinite num- 
ber of persons, either by bringing their minds or hearts under the influence 
of education or religion, by relieving their bodies from disease, suffering 
or constraint ; by assisting them to establish themselves in life, or by 
erecting or maintaining public works, or otherwise lessening the burdens 
of government : [Per Gray, J.,] Jackson v. Phillips, 14 Allen (Mass.) 539. 
A gift designed to promote the public good, by the encouragement of 
learning, science and the useful arts, without any particular reference to 



174 ADAMS's DOCTRINE OF EQUITY. 

In order to create a public or charitable trust, it is not 
necessary that the property on which the trust attaches 
should be derived from private bounty. The principle is 
equally applicable to a fund levied by authority of Parlia- 
ment, and placed' in the hands of public officers, in order 
to its application for public purposes. And in accordance 
with this view, it has been determined that since the 
passing of the Municipal Corporation Act,{n) directing 
the corporation property to be applied, first, for certain 
specified purposes, and afterwards, for other general pur- 
poses for the benefit of the town, a trust has attached on 
the property, giving jurisdiction in equity to control any 
improper dealing by the corporation, (o) 

It should be observed, that trusts for charitable pur- 
poses, equally with those for individual benefit, must be of 
a character not prohibited by the policy of the law. A 
trust therefore to promote religion must not be directed to 
what the law calls a superstitious use ; as, for example, 
the maintenance of a priest to pray for the soul of the 
donor.^ If such a trust be created in terms which show 
that the illegal object alone was contemplated, e. g.^ that 
the only object was to obtain for the donor the benefit of 
the prayers, the gift will be simply void. If it appears 
that charity was the object contemplated, e. g., that it was 

(n) 5*6 Win. 4, c. 76, s. 92. 

(o) Att.-Gen. v. Mayor of Dublin, 1 BUgh. N. S. 312 ; Att.-Gen. v. Comp- 
ton, 1 N. C. C. 417 ; Att.-Gen. v. Aspinwall, 2 M. & C. 613 ; Att.-Gen. v. 
Corporation of Poole, 2 K. 190; 4 M. & C. 17 ; 8 CI. & F. 409 ; Att.-Gen. 
V. Shrewsbury, 6 Bea. 220. 

the poor, is a charity: American Academy v. Harvard College, 12 Gray 
(Mass.) 582. 

* It has been held that there are no uses which can be denominated 
superstitious in the United States : Methodist Church v. Remington, 1 
Watts 218 ; Ga?s v. Wilhite, 2 Dana 170. 



ORDINARY AND CHARITABLE TRUSTS. 175 

intended to benefit the priest or to support his chapel, the 
illegality of the particular method will not exclude some 
other application, but the fund will be at the disposal of 
the Crown, to be applied *under the sign manual rH;f>o-i 
for some lawful object. ( p) In respect also to gifts 
for any charitable purpose, whether religious or not, there 
is an express restriction by statute, invalidating all gifts 
of or charges on real estate, or on estate savoring of the 
realty, for charitable uses, unless made by indenture, 
twelve months previously to the donor's decease. By the 
operation of this act, if the trust is entirely for charity, 
the gift is invalid at law ; if the gift at law is good, yet 
the trust is invalid, and the estate must be reconveyed.($')^ 
The incidents of a trust for charitable purposes are for 
the most part the same with those of an ordinary trust. 
The principal points of distinction are, first, that a char- 
itable trust is not afi'ected by lapse of time in the same 
manner as a trust for private persons ; ^ and secondly, that 
where an apparent charitable intention has failed, whether 

(p) West V. Shuttleworth, 2 M. & K. 684; Infra, cypres, Application. 
iq) 6 Geo. 3, c. 136 ; Jarm. on Wills 198. 

^ See Philpott i'. St. George's Hospital, 6 H. L. Cas. 338 : Hall v. War- 
ren, 9 H. L. Cas. 420. The Statutes of Mortmain are not generally in 
force in the United States : 2 Kent's Com. 282 ; Vidal v. Girard, 2 How. 
U. S. 187 ; Hill on Trustees 76, 710, 4th Am. ed. There are, however, 
legislative provisions regulating charitable gifts in certain particulars. 

' No neglect or perversion of the funds of a charity, by the trustees, 
will be permitted to aflfect it : Hadley v. Hopkins Acad., 14 Pick. 240 : 
Griffitts V. Cope, 17 Penn. St. 96 ; Wright v. Linn, 9 Id. 433 ; Att.-Gen. v. 
Wallace, 7 B. Monr. 611 ; Price v. Methodist Church, 4 Hamm. 542. Nor 
will the cestui que trust be affected by the declarations of the trustees : 
McKissick v. Pickle, 16 Penn. St. 148. But a general limitation over from 
one charity to another, contingent on the neglect of the trustees of the 
former, at any time, for a fixed period, to carry on the charity properly, is 
valid, and does not create a perpetuity: Christ's Hospital r. Grainger, 7 
Macn. & Gord. 460. 



176 ADAMS's DOCTRINE OF EQUITY. 

by an incomplete disposition at the outset, or by subsequent 
inadequacy of the original object, effect may be given to 
it by a cypres or approximate application, to the exclusion 
of a resulting trust for the donor. 

The first of these peculiarities exists in reference to the 
rule which has been already stated, that, as between the 
cestui que trust and an express trustee, no length of time 
is a bar to the right ; and that, on the other hand, with 
respect to constructive trustees, or parties who have ac- 
quired an estate with notice of a trust, the same principle 
does not apply. In case of charities, both branches 
of this rule are subject to modification. With respect to 
the first branch, it has been determined, that if the trus- 
tees of a charity have bond fide mistaken the right mode 
of application, and have actually disbursed the funds in 
accordance with that mistake, and without notice of the 
objection, the disbursements shall not be disallowed ; (r) 
and further, that although the mere length of an errone- 
r*AQ-l ous usage *cannot alter the original trust, yet 
where trusts have been imposed on colleges or 
other existing corporations, who are under no obligation 
to accept them, traditional usage may be allowed an effect 
which in ordinary cases it might not possess. And it has 
been accordingly held that, if there are questions on the 
original instrument of foundation, and an arrangement be 
fairly made at the time of acceptance, and evidenced by 
cotemporaneous instruments or by constant subsequent 
usage,- the Court will not disturb it, although in its own 
view of the original instrument, such arrangement was in 
effect a modification of that which might now be con- 
sidered the best construction, (s) 

(r) Att-Gen. v. Pretyman, 4 Bea. 462; Att.-Gen. v. Draper's Company, 
6 Id. 382 : Att.-Gen. v. Mayor of Exeter, Jac. 443 -, 2 Russ. 362. 

[s) Attorney-General v. Gains College, 2 K. 150 ; Attorney-General v. 
Draper's Company, 6 Bea. 382. 



ORDINARY AND CHARITABLE TRUSTS. 177 

In these instances the lapse of time is allowed to ope- 
rate against a charity to a greater extent than against an 
individual. But on the other hand, its operation under 
the second branch of the rule as a bar to claims against a 
constructive trustee, was not, until the late statute of 3 
& 4 Wm. 4, c. 27, available to protect a purchaser with 
notice of a charitable trust, either by analogy to the Stat- 
ute of Limitations, or as a presumptive bar by acquies- 
cence. The precise effect of the statute does not appear 
to have been determined. Its enactments are in terms 
imperative, and it contains no exception in favor of charity. 
But it seems to have been doubted by Sir Edward Sug- 
den whether charity is not a casus omissus, and whether 
the former rule does not continue. (^)^ 

The second and most singular peculiarity is, that where 
an apparent charitable intention has failed, w^hether by an 
incomplete disposition at the outset, or by subsequent in- 
adequacy of the original object, effect will be given it by 
a ct/ pres or approximate application, notwithstanding that 
in ordinary cases the trust would be void for uncertainty, 
or would result to the donor or his representative.^ 

{t) 3 & 4 Wm, 4, c. 27, ss. 24, 25 ; Incorporated Society v. Richards, 1 
Conn. & L. 68 ; Att.-Gen. v. Flint, 4 Hare 147 ; Commissioners of Dona- 
tions V. Wybrants, 2 Jones and Latouche 182. 

^ Att-Gen. v. Wilkins, 17 Bea. 285 ; but contra in the House of Lords, 
Magdalen College v. Att.-Gen., 6 H. L. Cas. 189 ; Att.-Gen. v. Davey, 4 
De G. & J. 136. See Att.-Gen. v. The Federal Street Meeting House, 3 
Gray 1. 

* The cy pres doctrines of the English Chancery have not been generally 
adopted in the United States, in their application to charitable trusts : 
Carter v. Balfour, 18 Ala. 814; White ». Fisk, 22 Conn. 31 ; McAuley v. 
Wilson, 1 Dev. Eq. 276 ; Beekman v. The People, 23 N. Y. 298 ; Wit: 
man v. Lex, 17 S. & R. 88; see Brendle v. The German Reformed 
Congregation, 33 Penn. St. 418; Att.-Gen. w. Jolly, 2 Strob. Eq. 379; 
Dickson v. Montgomery, 1 Swan 348 ; Venable v. Coffman, 2 W. Va. 310. 
12 



178 ADAMS's DOCTRINE OF EQUITY. 

r*7m *The soundness of the distinction thus drawn is 
perhaps open to douht ; but its existence is estab- 
lished by many precedents ; and it appears to rest, partly 
on the favor due to charity, and partly on the hypothesis 
that the details of a charitable gift are not, like those of a 
gift to individuals, the primary object of the donor, but 
that the true intention is, first to effectuate a charity, and 
secondly, to do so in the particular way w^hich the trust 
denotes. Of course this doctrine, whether well or ill 
founded, cannot apply to an ordinary trust : for there the 
donor's object is to benefit the persons specified; and if 
that benefit is not available, there is no ulterior intention 
to which effect can be given. 

In accordance with this principle two doctrines appear 
to be established, viz. : 1. If in a gift to charity an in- 
tention be manifested of appropriating the entire fund, it 
will be effectuated, to the exclusion of a resulting trust, 
notwithstanding that the gift actually made is of a portion 
only. And such intention may be evidenced, either by 
words declaring an intention to give the whole ; or by a 
gift of specified sums out of the income, if it appear that 
at the time of gift such specified sums exhausted the 
whole available income. For such exhausting gift is con- 
sidered equivalent to a gift of the whole, and will carry 
any subsequent increase. If it appears from the instru- 
ment of gift that the specified payments were meant as 
fixed charges, and not by way of illustration only, and 

It was, however, recognised in Baker v. Smith, 13 Metcalf 41; Burr's 
Exrs. V. Smith, 7 Verm, 287 (semble) ; Urmey's Exr. v. Wooden, 1 Ohio 
N. S. 160. See Att.-Gen. v. Wallace, 7 B. Monr. 611 ; Brown v. Concord, 
33 N. H. 285; Oilman v. Hamilton, 16 Illinois 225. By a recent Act of 
Assembly in Pennsylvania, the cy pres doctrine has been introduced into 
the law of that state to a certain extent : Brightly's Purd. 145 ; Zeisweiss 
V. James, 63 Penn. St. 465. 



ORDINARY AND CHARITABLE TRUSTS. 179 

that the corpus was meant for the benefit of the immediate 
donees, they will of course be entitled in exclusion of the 
charity, to any subsequent increase. The result of the 
decisions in this respect is, that an intention in favor of 
the donee will be presumed, first, if the gift be made to 
him subject to certain specified payments; secondly, if it 
be made on condition of making certain payments, and 
subject to forfeiture on non-performance ; or thirdly, if 
the donor would be liable to make good the payments, not- 
withstanding a subsequent *deficiency of the fund. p^M., -. 
In like manner, if it is apparent that the charity 
was to have only a limited interest, but that the immedi- 
ate donee was to have no benefit, the surplus or the sub- 
sequent increase will revert to the donor or his heir.(w)^ 

2. If in a gift to charity the intended object be not 
specified at all, or not with sufficient certainty ; or if it 
cease to exist, or to afford the means of applying the 
entire fund, the presumed general object will be effectu- 
ated by an application ci/ pres ; i.e., an application to 
some other purpose, having regard as nearly as possible 
to the original plan. 

The assumption on which this doctrine is based, viz., 
that the general idea of charity was uppermost with the 
donor, and that the particular charity specified was merely 
illustrative, is one of a very doubtful character. Lord 
Eldon repeatedly expressed his disapprobation of it, but 

(tt) Thetford School Case, 8 Rep. 130 ; Att.-Gen. v. Arnold, Show. P. C. 
22; Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294; Att.-Gen. v. Skinners' 
Company, 2 Russ. 407 ; Att.-Gen. v. Smythies, 2 R. & M. 717 ; Att.-Gen. 
V. Wilson, 3 M. & K. 362 ; Att.-Gen. v. Drapers' Company, 2 Bea. 508 ; 
Att.-Gen. v. Coopers" Company, 3 Id. 29 ; Att.-Gen. v. Grocers' Company, 
6 Id. 526 ; Jack v. Burnett, 12 CI. &F. 812. 

^ See the Mayor of Beverly !;. The Att.-Gen., 6 H. L. Cas. 310; Att.- 
Gen. V. Dean of Winsor, 8 H. L, Cas. 369. 



180 ADAMs's DOCTRINE OF EQUITY. 

considered it firmly established by precedent, and for that 
reason refused to overthrow it. (e') It is, however, a mere 
presumption of law ; and, therefore, if it appears from 
the wording of the instrument that the individual charity 
was the only one in the donor's mind, and that, if that 
should fail, he intended the property to revert to himself, 
there is no equity to alter his disposition, {w) 

The manner in which the c^ pres application is effected, 
is by referring it to the Master to settle a scheme, having 
a regard to the instrument of gift. In ordinary cases 
this is not difficult; as, for example, in one instance, 
where a legacy was given to University College to 
purchase advoAvsons, and it was found that they already 
held as many advowsOns *as the law would permit; 
'- "'-' and in another, where a devise was made to 
Trinity Hall, Cambridge, for the purpose of founding 
fellowships for the scholars of a particular school, and the 
college alleged that fellowships of this class were contrary 
to their statutes. In both these cases the real intention 
of the doner was sufficiently obvious. There could be no 
doubt in the one that he meant to increase the advowsons 
of the college, or in the other that he meant to provide 
endowments for the school; and accordingly the fund 
was applied in the former case for increasing the value of 
the existing advowsons, and in the latter it was suggested 
by Lord Thurlow that it would be near the purpose, 
if the college would admit the scholars as exhibitioners ; 
or if any other college would receive them as fellows, {x) 

(«) Moggridge v. Thackwell, 7 Ves. 36 ; Mills v. Farmer, 19 Id. 483. 

[w) Corbyn ». French, 4 Ves. 418; De Themmines v. De Boneval, 5 
Russ. 288 5 Att.-Gen. v. Whitchurch, 3 Yes. 141 •, Cherry v. Mott, 1 M. & 
C. 123. 

[x) Att.-Gen. r. Green, 2 B. C. C. 492 ; Att.-Gen. v. Andrews, 3 Ves. 
633. 



ORDINARY AND CHARITABLE TRUSTS. 181 

In cases where the charity is of a compound character, 
it is sometimes difficult to determine in what part of the 
description its essence resides. A doubt of this kind arose 
in a case where a gift had been made for apprenticing the 
sons of poor Presbyterians, resident in the testator's 
parish ; a surplus arose, to be applied ey iwes; and it was 
contended on one side, that the proper objects would be 
poor Presbyterians resident out of the parish; on the other, 
that they would be poor persons in the parish, not being 
Presbyterians. The Court, on looking at all the circum- 
stances came to the conclusion, that the profession of 
Presbyterianism, and not the residence in the parish was 
in the particular instance the primary object, and decreed 
in favor of the first scheme, (y) 

In some instances the object specified is so peculiar, 
that it is difficult to find anything substantially analogous. 
In this case, if other charities are mentioned in the will, 
they may afford a clue for the guidance of the Court. 
The application, however, must be a cy pres one to the 
object which has failed, and not a mere transfer to the 
other charities. The *principle on which such r^To-i 
charities can be available as a guide, appears to be 
that of ascertaining how much of the original object it is 
possible to adopt, and then filling up the deficiencies from 
the other objects. An instance of this kind occurred 
under a bequest of property on three trusts ; viz., as to 
one-half for the redemption of British slaves in Algiers ; 
as to a quarter for Church of England schools in London ; 
and as to the remaining quarter for poor freemen of the 
Ironmonger's Company. The first trust failed for want 
of objects. It was held, that so much of the first trust 
as conferred a benefit on all British subjects might still 

[y) Att.-Gen. v. Wansay, 15 Ves. 231. 



182 ADAMS's DOCTRINE OF EQUITY. 

be effectuated, and that the mode of effectuating it might 
be borrowed from the second trusts; and the fund was 
accordingly applied for the maintenance of Church of 
England schools throughout England. (0) The difficulties, 
however, which may occur in discovering an analogy, will 
not obviate the necessity of doing it. If the fund is 
clearly dedicated to charity, the Court of Chancery must 
so apply it. And similarities of character, however re- 
mote, may properly warrant a proposed application, if no 
other plan of nearer affinity can be found. 

The jurisdiction in equity for a cy pres application 
appears to exist in all cases where the original gift creates 
a trust for distribution in charity, although the trust as 
designated fails of effect. But if there be a general inde- 
finite gift to charity or the poor, or a gift to a charity of 
a superstitious character, which is considered in law as 
equivalent to an indefinite gift, it seems that the disposi- 
tion is in the Crown by sign manual, (a) ^ 

The jurisdiction to superintend a charitable trust is set 
in motion by the information of the Attorney-General 
r*74."l *s^i^g ^^ behalf of the Crown, or, if the nature 
of the trust is such that its non-performance has 
inflicted personal injury on an individual, then by a com- 
pound form of suit, uniting both the public and the private 
wrong, and called an information and bill. So far as its 
exercise is required for controlling the management of 
the property, it extends to all charities, whether corpo- 

(z) Att.-Gen. «. Ironmongers' Company, 2M. & K. 576 ; 2 Beav. 313 ; 
Cr. & P. 208 ; 10 CI. & F. 908. 

(a) Moggridge v. Thackwell, 7 Ves. 36 ; Hayter v. Trego, 5 Russ. 113 ; 
De Themmines v. De Bonneval, 5 Russ. 292 ; Att.-Gen. v. Todd, 1 K. 803 ; 
Reeve v. Att.-Gen., 3 Hare 191. 

' See article in the American Law Register, vol. 1, N. S. pp. 385-400. 



ORDINARY AND CHARITABLE TRUSTS. 183 

rate or not, and is regulated by the same principles as in 
the case of ordinary trusts. The trustee having the legal 
dominion, may exercise that dominion for effectuating the 
objects of his trust, but he cannot do so for any other 
object; he may manage the property in a husbandlike 
way, but he cannot waste or alienate \t.{b) 

So far as the jurisdiction is sought to be exercised for 
directing the internal administration of the charity, and 
determining the manner in which the funds shall be 
applied, it is confined to charities at large, i. e., such cha- 
rities as have no charter of incorporation, but are under 
the management of private persons, or of some independ- 
ent corporation, in whom, as trustees, their property is 
vested. 

In the case of eleemosynary corporations, i. e., corpo- 
rations established by charter for the purposes of the 
charity, and having endowments for that purpose, the 
jurisdiction of equity is confined to the management of 
the estate, and does not extend to the election or amotion 
of corporators, or to the internal administration of the 
charity. The proper jurisdiction for these purposes is 
that of the visitor, which is incidental to all eleemosy- 
nary corporations, and, if not expressly or impliedly con- 
ferred by the charter itself, will arise of common right to 
the founder and his heirs. If the King be founder, or 
if the heir of the founder be unknown or a lunatic, the 
jurisdiction will be in the Crown, to be exercised through 
the Lord Chancellor on petition to him. If the visitor 
refuses to hear and decide a dispute, he may be compelled 
to do so by *mandamus ; but his decision cannot r^jx-i 
be controlled. If, however, the visitors are also 

(&) Att.-Gen. v. Pargeter, 6 Bea. 150; Att.-Gen. v. Foord, 6 Id. 289; 
Att.-Gen. v. Corporation of Newark, 1 Hare 395. 



184 ADAMS's DOCTRINE OF EQUITY. 

in receipt of the revenue, so that they are in fact trustees, 
subject to no inclependentcontrol, the jurisdiction of equity 
will attach ; and the same result will follow when the ob- 
ject sought is beyond the visitor's functions, such, for in- 
stance, as a new apportionment of the charity revenues. (^) 

In addition to the jurisdiction of equity in matters of 
charity, a special jurisdiction was created by the statute 
43 Eliz. c. 4, called the Statute of Charitable Uses, for 
remedying abuses of charitable gifts. And it is thereby 
enacted that commissioners may be appointed by the Crown 
for the regulation of charities, whose decision shall be 
subject to review by the Lord Chancellor, with a further 
appeal to the House of Lords. The statute, however, 
does not exclude the right to proceed in Chancery ; and 
the proceeding under it has fallen into disuse. (c?)^ 

There is also a statutory jurisdiction in the Court of 
Chancery itself for remedying abuses by a summary pro- 
cess, instead of the more regular course by information 
and bill. This jurisdiction is created by 52 Geo. 3, c. 101, 
commonly known as Sir Samuel Romilly's Act, which 
directs that, where a breach of trust has been committed 
by the trustees of a charity, or where the direction of a 
Court of equity is deemed necessary for its administra- 
tion, the parties seeking relief may proceed summarily 

(c) Ex parte Wrangham, 2 Ves. Jun. 609 ; Re Queen's Coll. Jac. 1 ; 3 
Steph. Bl. 183 ; Ex parte Inge, 2 R. & M. 591 ; Rex v. Archbishop of Can- 
terbury, 15 East 117; Att.-Gen. v. Foundling Hospital, 2 Ves. Jun. 4"2 ; 
Att.-Gen.'w. Dixie, 13 Ves. 519 ; Ex parte Kirby Ravensworth Hospital, 15 
Ves. 305 ; Att.-Gen. v. Earl of Clarendon, 17 Ves. 491 ; Ex parte Berk- 
hamstead Free School, 2 Ves. & B. 134 ; Att.-Gen. v. Lubbock, 1 Coop. 
Ch. Ca. 15 ; Att.-Gen. v. Smythies, 2 R. & M. 717, 737 ; 2 M. & C. 135. 

[d) Att.-Gen. v. Mayor of Dublin, 1 Bl. N. S. 312, 347 ; Incorporated 
Society v. Richards, 1 Conn. & L. 58. 

^ See ante, note to page 65. 



ORDINARY AND CHARITABLE TRUSTS. 185 

by a petition to be sanctioned by the fiat of the Attorney- 
General. The summary jurisdiction thus conferred, if the 
statute had been construed in its widest acceptation, would 
have been one of a very *extensive character, but r^ye-i 
it is confined by the decisions to plain breaches of 
trust, or to cases where no contention exists, and where 
the trustees are merely asking the direction of the Court. 
If any question is involved as to who are to be intrusted 
with the estate, or who are to be entitled to the benefit of 
it, or if the interest of any stranger may be affected, or 
if a new application of the fund is sought, the proper 
course is by an information, (e) 

In the particular case of Grammar Schools, an addi- 
tional jurisdiction has been conferred on the Court by 3 
& 4 Vict. c. 77. And authority is given to make decrees 
and orders, either in the progress of an ordinary suit, or 
on petition under Sir Samuel Romilly's Act, for extend- 
ing the system of education to other branches of learning 
besides Greek and Latin ; for extending or restricting the 
right of admission ; and for establishing schemes for the 
application of the revenue, having due regard to the inten- 
tions of the founder. By the same act authority is given 
to the Court to enlarge and confer powers for regulating 
the discipline of such schools, and to appoint the mode of 
removing masters. 

A summary jurisdiction is also conferred by statute for 
superintending and controlling the officers of Friendly So- 
cieties ; (/) for apportioning charitable bequests between 
new parishes and districts formed under the Church 

(e) 52 Geo. 3, c. 101 ; Corporation of Ludlow v. Greenhouse, 1 Bl. N. S. 
17; Re Clark's Charity, 8 Sim. 34; Re Phillipott's Charity, Id. 381; 
Re West Retford, 10 Id. 101 ; Re Parke's Charity, 12 Id. 329. 

(/) 10 Geo. 4, c. 56, ss. 14, 15, 16. 



186 ADAMS's DOCTRINE OF EQUITY. 

Building Acts and the remaining parts of the old parishes, 
and making a like apportionment of debts or charges con- 
tracted or charged on the credit of church rates ; {g) and 
for administering property which was formerly vested in 
the municipal corporations on charitable trusts. (A) 

[g) 8 & 9 Vict. c. 70, s. 22. 
(A) 5 & 6 Win. 4, c. 76, s. 71- 



OF SPECIFIC PERFORMANCE. 187 



*CH AFTER 11. [*7r] 

OF SPECIFIC PERFORMANCE ELECTION MERITORIOUS OR IM- 
PERFECT CONSIDERATION DISCHARGE BY MATTER IN PAIS OF 

CONTRACTS UNDER SEAL RELIEF AGAINST PENALTIES. 

The jurisdiction for compelling performance of a con- 
tract involyes the consideration not merely of "what is 
technically termed specific performance, but also of the 
doctrines of election, of meritorious or imperfect consider- 
ation, of the discharge by matter in pais of contracts 
under seal, and of relief against penalties and forfeited 
mortgages. The equities, therefore, which exist under 
those heads, except those relating to forfeited mortgages, 
will form the subject of the present chapter. The juris- 
diction of equity over mortgages will be afterwards sepa- 
rately considered. 

The equity to compel Specific Performance of a contract 
arises where a contract, binding at law, has been infringed, 
and the remedy at law by damages is inadequate.^ And 

^ The character of the relief which equity affords in decreeing the 
specific performance of a contract does not differ in kind from that which 
is administered by the same system of jurisprudence in other cases, for 
the relief given in equity is always specific. See Introduction, page xxxv., 
ante. In cases of contracts the jurisdiction of equity arises in some in- 
stances from the inability to estimate damages for the breach ; and, in 
others, from the inadequacy of the compensation which damages afford ; 
and the jurisdiction having once attached, the Court goes on to apply its 
usual remedy, viz., specific relief, or causing that to be actually done which 



188 ADAMS's DOCTRINE OF EQUITY. 

in order to originate this equity, it is essential that the 
contract shall have been made for valuable consideration, 
and that its enforcement in specie be practicable and 
necessary.^ The validity of the contract at law is not 

in good conscience ought to be done. Equity acts " specifically" in the 
enforcement of a trust, the reformation of a written instrument, and other 
instances, no less than in decreeing the performance of a contract ; and 
the only reason why the term " specific" seems to 'have been more fre- 
quently applied to the last case, than to the others, is, perhaps, because in 
the performance of contracts the relief in equity is more striking, and 
more in contrast with the common law remedies, than in other instances. 

The Act of 21 & 22 Vict. c. 27, commonly known as Sir Hugh Cairns's 
Act, provides that the Court may either in addition to or in substitution for 
the relief which is prayed, grant that relief which would otherwise be 
proper to be granted by another Court — that is to say, award damages. 
On the construction of this act see Ferguson v. Wilson, L. R. 2 Eq. 77 ; 
Soames v. Edge, Johns. 649; Norris v. Jackson, 1 Johns. & H. 319; Howe 
r. Hunt, 31 Beav. 420. In Indiana (by statute) specific performance is 
enforced through the common law medium of a trial by jury ; and in Penn- 
sylvania a similar result is attained as respects land by the action of eject- 
ment. So too in California : Weber v. Marshall, 19 Cal. 447 ; and Wis 
consin: Fisher v. Moolick, 13 Wis. 321. 

^ The requisites for the specific performance of contracts in equity are 
five: First, the performance in specie must be necessary ; Second, it'must 
be practicable; Third, there must be a valuable consideration ; Fourth, 
the terras of the contract must be certain ; and Fifth, it must be reciprocal. 
To these rules it may be added, generally, that the allowance of this relief 
is a matter of judicial discretion. 

First. The relief must be necessary, and this necessity may result either 
from the inadequacy of the damages afibrded at common law, or from the 
impossibility of ascertaining those damages. Of the former, instances will 
be found in Lloyd v. Loaring, 6 Vesey, Jr. 773 ; Nutbrown v. Thornton, 10 
Id. 159; Earl of Macclesfield v. Davis, 3 Vesey & B. 16; Lowther 
V. Lowther, 13 Vesey 95 ; Fells v. Read, 3 Id. 71 ; Pusey v. Pusey, 1 
Vern. 273'; Duke oLSomerset v. Cookson, 3 P. Wms. 389 ; Brown v. Gilli- 
land, 3 Dessaus. 541 ; Phyfe ». Wardell, 2 Ed. Ch. 51 ; Bowman v. Irons, 2 
Bibb 78 ; Falcke v. Gray, 5 Jur. N. S. 645 ; 4 Drew 651 ; Hill v. Rocking- 
ham Bank, 44 N. Hamp. 567. Of the latter, the following cases will 
furnish examples : Sullivan v. Tuck, 1 Md. Ch, 59 ; Waters v. Howard, 
Id. 112; Finley v. Aiken, 1 Grant Cas. 83. When some of the articles 
are capable of compensation in damages, and some are not, equity will 



OF SPECIFIC PERFORMANCE. 189 

material to be here considered. And our attention will 
therefore be directed to those requisites alone which, as- 

enforce performance as to the whole : McGowin r. Remington, 12 Penn. 
St. 56. As a general rule, specific performance of contracts relating to 
personal property will not be enforced : Cowles r. Whitman, 10 Conn. 121 ; 
Hoy V. Hansborough, 1 Free. Ch. 533 ; Cuddie v. Rutter, 1 Lead. Cas. Eq. 
640. Though the rule is otherwise when the chattel has not merely a 
market value, but also apretium affectionis: Pusey r. Pusey, 1 Lead. Cas. 
Eq. r,54 ; Duke of Somerset v. Cookson, Id. 655. The fact that in an 
agreement to convey land, a penalty for non-compliance with the contract 
has been inserted expressly as " liquidated damages,*' does not deprive the 
party injured of his right to a specific performance : Hull v. Sturdivant, 
46 Maine 34; Hooker v. Pynchon, 8 Gray 550; Moorer r. Kopmann, 11 
Rich. Eq. 225 ; Daily v. Litchfield, 10 Mich. 38. See Dowling ». Betje- 
mann. 2 Johns, k H. 544 ; Gillis r. Hall, 2 Brewster (Pa.) 342. 

Second. The specific enforcfement of the contract must be practicable : 
Tobey v. The County of Bristol, 3 Story 800 ; Blackett v. Bates, 12 Jur. 
N. S. 151 ; also Phillips v. Stauch, 20 Mich. 369 ; Burke v. Seeley, 
46 Mo. 334. For instance, a contract to convey land will not be specifi- 
cally enforced against a vendor who has no title : Fitzpatrick v. Feather- 
stone, 3 Ala. 40. Mere pecuniary inability, however, is no defence : Hopper 
V. Hopper, 1 Green (N. J.) 147 ; see also Love v. Cobb, 63 N. C. 324. 
And an agreement to devise lands will not be specifically enforced : Staf- 
ford V. Bartholomew, 2 Carter 153 ; though see Maddox v. Rowe, 23 Geo. 
431 ; Mundorf v. Kilbourne, 4 Md. 463 ; Whitridge v. Parkhurst, 20 
Id. 62 ; Johnson v. Habbell, 2 Stockton, 332 ; Logan v. McGinnis, 12 
Penn. St. 27. A specific performance by husband and wife of a contract 
for the sale of the wife's land will not be decreed on a bill filed by the 
vendee; Clarke c. Reins, 12 Gratt. 98; though in Massachusetts a wife 
may, by statute, make a binding contract for the sale of her lands ; Baker 
». Hathaway, 5 Allen 103. Under this head, too, fall the instances men- 
tioned infra, p. 81, where the specific performance of a contract will not 
be decreed when the property afiected by it has become vested, by descent 
or devise, in infants and persons from other reasons incapable of executing 
a conveyance. In most of the United States, however, there are statutes 
providing for the execution of decedents' contracts. 

Third. The agreement must be supported by a valuable consideration. 
See infra, p. 78 note. 

Fourth. The terms of the contract must be explicit and certain : Dodd c. 
Seymour, 2 Conn. 473 ; Rockwell v. Lawrence, 2 Halstead Ch. 190; Mc- 
Kibbin t*. Brown, 1 McCart. 13 j Aday v. Echols, 18 Ala. 353; Soles p. 
Hickman, 20 Penn. St. 180 ; Allen v. Burke, 2 Md. Ch. 534 ; Canton 



190 ADAMS's DOCTRINE OF EQUITY. 

suming the fact of its legal validity, are essential to the 
equity for specific enforcement, 

Co, V. The Railroad Co., 21 Md. 395 •, Maderia v. Hopkins, 12 B. Monr. 
595 ; Parrish v. Koons, 1 Pars. Eq. 97 ; Robinson v. KetUetas, 4 Edw. Ch. 
67; Price ?;. Griffith, 1 De G., M. & G. 80 ; Hammer v. McEldowney, 46 
Penn. St. 334 ; Taylor v. Portington, 7 De G., M, & G. 328 •, Parker v. 
Taswell, 2 De G. & J. 571 •, Buckmaster v. Thompson, 36 N. Y. 558 -, 
"Waring v, Ayres, 40 Id. 357 ; Jordan v, Deaton, 23 Ark. 704 ; Potts v. 
Whitehead, 20 N. J. Eq. 55 ; Lobdell v. Lobdell, 36 N. Y. 327 ; Brewer v. 
Wilson, 2 Green (N. J.) 180; Mehl r. Von Derwulbeke, 2 Lans. (N. Y.) 

267 ; Foot v. Webb, 59 Barb. (N. Y.) 38 ; Munsell v. Loree, 21 Mich. 491. 
When th« price to be paid was to be fixed by two persons, and a third 
(their nominee), and they could not agree, the court refused specific per- 
formance : Milnes v. Gery, 14 Vesey 400-407 ; Darbey v. Whitaker, 4 
Drew. 134; Dike v. Greene, 4 R. I. 285. And the same rule applies to 
other stipulations, besides those in regard to the price: Tillett v. The 
Charing Cross Bridge Co., 26 Beav. 419. Though see Gregory v. Mighell, 
18 Vesey 328. An agreement to sell at ajuir valuation may be enforced : 
Milnes v. Gery, supra; A^an Doren v. Robinson, 1 Green (N. J.) 256. 
Though an agreement is uncertain when first entered into, its terms may 
be settled by user: Laird v. The Birkenhead Railway Co., John. 501; 
Powell V. Thomas, 6 Hare 300. See, in this connection. Price v. Salusbury, 
32 Beav. 446. 

Fifth. The agreement must be mutual. See post 82, note 1. It may 
be added, lastly, that the specific performance of a contract is a kind of 
relief which rests injudicial discretion, that is a discretion not vacillating 
or arbitrary, but one which is governed by sound and fixed rules, and 
which is only exercised within certain defined limits. It is a discretion 
which is to a considerable extent controlled by the circumstances of the 
individual case : Rogers v. Saunders, 16 Maine 92 ; Griffith v. Frederick 
County Bank, 6 Gill. & J. 424 ; Pigg v. Corder, 12 Leigh 69, 76 ; Meeker 
V. Meeker, 16 Conn. 403 ; Seymour v. Delancy, 3 Oow. 445 ; 6 John. Ch. 
222 ; King v. Morford, Saxton 274 ; Anthony v. Leftwich, 3 Rand. 238 ; 
Prater r. Miller, 3 Hawks. 629 ; Turner v. Clay, 3 Bibb 52 ; Frisby v. Bal- 
lance, 4 Scam. 287 ; McMurtrie v. Bennette, Harring. Ch. 124; Dougherty 
V. Humston, 2 Blackf. 273; St. John v. Benedict, 6 John. Ch. Ill ; Hen- 
derson V. Hays, 2 Watts 148 ; Perkins v. Wright, 3 Har. & McHen. 324 ; 
Leigh V. Crump, 1 Ired. Ch. 299 ; Gould v. Womack, 2 Ala. 83 ; Tobey v. 
The County of Bristol, 3 Story 800 ; Dalzell v. Crawford, 1 Parsons 45 ; 
Waters v. Howard, 8 Gill 262; Tyson v. Watts, 1 Md. Ch. 13; Bennett 
V. Smith, 16 Jurist 421 ; 10 Eng. L. & Eq. 272 ; Fish v. Lightner, 44 Mo. 

268 ; but a discretion, nevertheless, which conforms itself to general rules 



OF SPECIFIC PERFORMANCE. 191 

*The first requisite is that there be a valuable ^ _ 

. r 781 

consideration, either in the way of benefit be- ^ -^ 

stowed, or of disadvantage sustained, by the party in 

whose favor a contract is to be enforced, (a) ^ The neces- 

(a) 2 Steph. Bl. 113. 

and settled principles : Ash v. Daggy, 6 Ind. 259 ; Powell v. Central Plank 
Co., 24 Ala. 441 ; Stoutenburgh v. Tompkins, 1 Stockt. 332; Chubb v. 
Peckham, 2 Beas. 207 ; Haywood v. Cope, 25 Beav. 140. In the exercise 
of this discretion, if the complainant has been guilty of laches : Parrish v. 
Koons, 1 Pars. Eq. 97 ; Ins. Co. v. Union Canal Co. Bright. N. P. 48 ; 
Miller r. Henlan, 51 Penn. St. 265 ; or has failed to perform his own part 
of the contract : Roy v. Willink, 4 Sand. Ch. 525 ; Slaughter v. Harris, i 
Carter 238 ; Eastman v. Plumer, 46 N. H. 464 ; specific performance will- 
be refused. 

^ To entitle a party in Chancery to the aid of the court in obtaining a 
specific performance, the instrument must be supported by a valuable con- 
sideration, or at least by what a Court of equity considers a meritorious 
consideration, as payment of debts, or making provision for a wife and 
child : Minturn v. Seymour, 4 John. Ch. 500 ; Woodcock v. Bennett, 1 
Cowen 733 ; Cabeen v. Gordon, ] Hill Ch. 51 5 Shepherd v. Shepherd, 2 
Md. Ch. 144 ; Vasser v. Yasser, 23 Miss. 378 ; Crompton ». Vasser, 19 Ala. 
259 ; Clarke v. Lott, 1 1 111. 105 ; Banks v. May, 3 A. K. Marsh. 436 ; Butman r. 
Porter, 100 Mass. 337 ; Tarbell v. Tarbell, 10 Allen 278 5 Walrond v. Wal- 
rond, Johns. 18 ; Allen v. Davison, 16 Ind. 416 i Short v. Price, 17 Tex. 
397-403 : Lear v. Chouteau, 23 111. 39 ; Harkness v. Remington, 7 R. I. 
134. Where the holder of shares of railway stock upon which no deposit 
or other sums have been paid, agrees to transfer them to another who 
agrees to receive them, and to do all acts necessary to relieve the former 
from liability in respect to them, the agreement is not void for want of 
consideration or mutuality, but a bill may be sustained against the latter 
to compel him to take the stock : Cheale r. Kenward, 3 De G. & J. 27. A 
contract to borrow a sum of money will not be specifically enforced : 
Rogers v. Challis, 27 Bear. 175 ; nor a contract to lend : Sichel v. Mosen- 
thal, 30 Beav. 371-377. Natural love and afi"ection has been held to be a 
good consideration in equity, in Taylor v. James, 4 Dessaus. 5; Mclntire 
V. Hughes, 4 Bibb 186 ; Caldwell v. Williams, 1 Bailey Eq. 175 ; and see 
Hayes r. Kershow, 1 Sandf. Ch. 261. But in Pennsylvania, the opposite 
doctrine has been held : Kennedy v. Ware, 1 Penn. St. 445 ; Campbells 
Est, 7 Id. 100, and see Morris v. Lewis, 33 Ala. 353 ; and this is unques- 
tionably the result of the English cases. As to assignments for the benefit 
of creditors, see ante 31, and note; Hill on Trustees, 4th Am. ed. 507 in 
note ; Burrill on Assignments 280, 306 ; notes to Thomas v. Jenks, 1 Am. 
Lead. Cas. 80 ; and see Hickman v. Grimes, 1 A. K, Marsh. 87. 



192 ADAMS'S DOCTRINE OF EQUITY. 

sity for such consideration exists at law, where the agree- 
ment is by simple contract only ; but if it be an agree- 
ment under seal, technically called a contract by specialty, 
the solemnity of a deed is held at law to imply a consi- 
deration. In equity, however, where a special remedy is 
sought in addition to the ordinary one of pecuniary re- 
compense, a valuable consideration is always requisite, 
and no additional force is given to the agreement, because 
it is evidenced by an instrument under seal. If there be 
no consideration, or if the only consideration be a moral 
duty or natural affection, which are termed good, but not 
valuable considerations, the Court of Chancery will not 
interfere ; e. g., if a man contract after marriage, in con- 
sideration of duty or affection towards his wife and child- 
ren. (3) If, on the other hand, the contract be made 
before marriage, it will be supported, in consideration of 
the subsequent marriage, and may be enforced on the ap- 
plication of any person claiming within that consideration.'^ 
It will not, however, be enforced on the application of a 
party not within the consideration, to whom a collateral 
interest has been voluntarily given, — although, if enforced 
at all, it will be enforced throughout, (c) The pecu- 
liar doctrine of equity with respect to meritorious or 
imperfect considerations, which are distinguished from 
valuable considerations on the one hand, and from an 
absolute want of consideration on the other, will be 
presently considered. It is sufficient here to remark, 
that where a decree for specific performance is asked, 

(&) Jefferys v. Jefferys, Cr. & P. 141 ; [Moore v. Crofton, 3 Jones & Lat. 
442.] 

(c) 3 Sug. V. & P. 289; Davenport w. Bishopp, 2 N. C. C. 451; 1 Ph. 
698. 

» Neale v. Neales, 9 Wall. 1. 



OF SPECIFIC PERFORMANCE. 193 

there must be a valuable consideration to support the 
equity. A distinction, however, must be noted between 
value and adequacy. It is essential that the consideration 
be valuable, but it is not essential *that it be also r^-rq-i 
adequate. The parties themselves are the best 
judges of that ; and therefore mere inadequacy, if not so 
gross as to prove fraud or imposition, will not warrant the 
refusal of relief, (c?)^ 

By parity of reasoning, if a benefit has been conferred 
as the consideration for any act, a party who knowingly 
accepts that benefit, though he may not be bound by an 
actual contract, or by a condition of performance annexed 
to the gift, is compellable in equity to do the act.(«) And 
in like manner it is a principle of the common law, that 

[d) 1 Sug. V. & P. 440 ; Borell v. Dann, 2 Hare 440, 450 ; Bower v. 
Cooper, Id. 408. 

(c) Edwards v. Grand Junction Railway, 1 M. & C. 650; Green v. Green, 
19 Ves. 665 ; 2 Merv. 86 ; Gretton v. Haward, 1 Sw. 409, 427. 

^ Mere inadequacy of price is not^«r se sufficient to set aside a transac- 
tion : Park v. Johnson, 4 Allen 259 ; yet where it is so great as to give to 
the contract the character of unreasonableness and hardship, the Court 
may be induced to stay the exercise of its discretionary power, in enforcing 
the specific performance of a contract for the sale of land, and leave the 
party to seek his compensation in damages at law : Osgood et al. v. Frank- 
lin et al., 2 John. Ch. 23, s. c. on appeal, 14 John. 527 ; Howard r. Edgell, 
17 Verm. 9 ; Shepherd v. Bevin, 9 Gill 32 ; Erwin v. Parham, 12 How. U. 
S. 197 ; Harrison v. Town, 17 Mo. 237 ; Powers v. Hale, 5 Foster 145; 
and so as to personalty : Falcke v. Gray, 4 Drew. 651. See also Seymour 
V. Delancy, 3 Cowen 445 ; 6 John, Ch. 222 ; Garnett v. Macon, 2 Brock. 
185; Rodman r, Zilley, Saxton 320; White v. Thompson, 1 Dev. & Bat. 
Ch. 493 ; Fripp v. Fripp, Rice Ch. 84; Bean v. Valle, 2 Mo. 126 ; David- 
son V. Little, 22 Penn. St 245 ; Vick r. Troy & Boston R. R. 21 Barb. 381. 
If the inadequacy be very gross and manifest, so as has been said to " shock 
the conscience," the court will infer fraud or imposition, and, it seems, 
give active relief: Butler v. Haskell, 4 Dessaus. 687 ; Wright v. Wilson, 2 
Yerg. 294 ; Barnett v. Spratt, 4 Ired. Eq. 171 ; Deaderick v. Watkins, 8 
Humph. 520 : see, however, Erwin ». Parham, 12 How. U. S. 197. 
13 



194 ADAMS's DOCTRINE OF EQUITY. 

if a service has been rendered and accepted by any person, 
it will be implied, in the absence of a specific contract, 
that he shall pay a^ much as it is reasonably worth. (/) 

The necessity for valuable consideration is confined, in 
equity, as well as at law, to promises which rest in fieri} 
If the promise has been already executed, whether at 
law by transfer of a legal ownership, or in equity by the 
creation of a final trust, the consideration on which it was 
made is immaterial. And it is therefore frequently con- 
tended, that effect should be given to a voluntary promise, 
on the ground that the party making it, though he has not 
absolutely perfected his gift, has gone sufficiently far to 
constitute himself a trustee for the claimant. The exact 
line of demarcation, where the contract ceases to be an 
executory agreement, and becomes a perfected trust in 
equity, is often difficult to distinguish; but the principle 
itself is sufficiently clear. If the donor has perfected his 
gift in the way which he intended, so that there is nothing 
left for him to do, and nothing which he has authority to 
countermand, the donee's right is enforceable as a trust, 
and the consideration is immaterial. Such, for instance, 
is the case where an instrument of gift has been fully 
r*801 ®^®c^t®<^j ^although retained in the donor's posses- 
sion; (^)^ where the legal ownership of a right en- 

(/) 2 Steph. Bl. 186. 

{^g) Coningham v. Plunkett, 2 N. C. C. 245 ; Hughes v. Stubbs, 1 Hare 
476 ; Exton v. Scott, 6 Sim. 31 ; Fletcher v. Fletcher, 4 Hare 67. 

' Equity will aid in enforcing an agreement executed, though voluntarj, 
dliter if it be executory : Read v. Long, 4 Yerg. 68 ; Wyche v. Green, 16 
Geo. 49 ; Morris v. Lewis, 33 Ala. 53. But, in Boze v. Davis, 14 Texas 
331, it was held that equity will not enforce a voluntary agreement to 
convey land, although the grantee was put in possession and made im- 
provements ; but, if the bill is properly drawn, he may obtain compensa- 
tion for the labor he expended and the improvements he made : Pinckard 
V. Pinckard, 23 Ala. 649, ace. 

« Way's Settlement, 10 Jur. N. S. 1166. 



OF SPECIFIC PERFORMANCE. 195 

forceable at law has been completely vested in a trustee 
for the claimant; (/z) where the legal estate is already in a 
trustee, and the equitable ownership, retaining the old 
trustee, has been completely assigned to the claimant, or 
a trustee for him;p) where a chose in action which is 
transferable in equity alone, has been transferred by a 
complete equitable assignment ; {Jc) or where, by a formal 
declaration of trust, which purports to be and is a com- 
plete transaction, the donor has assumed the character of 
a trustee. (/) If, on the contrary, the transaction is in- 
complete, and its final completion is asked in equity, the 
Court will not interpose to perfect the author's liablity, 
without first inquiring into the origin of the claim, and 
the nature of the consideration given, (m)^ 

(A) Fletcher v. Fletcher, 4 Hare 67. 

(i) CoUinson v. Pattrick, 2 K. 123 ; Sloan v. Codogan, 3 Sug. V. & P. 
App. 66 ; Beatson v, Beatson, 12 Sim. 281. 

[k) Ex parte Pye & Dubois, 18 Ves. 140 ; McFadden v. Jenkyns, 1 Hare 
458 ; 1 Ph. 153 ; Fortescue v. Barnett, 3 M. & K. 36 ; Edwards v. Jones, 1 
M. & C. 226. 

{I) Meek v. Kettlewell, 1 Hare 464 ; 1 Ph. 342. 

\m) Edwards v. Jones, 1 M. & C. 226 ; Dillon v. Coppin, 4 Id. 647 ; 
Meek v. Kettlewell, 1 Hare 464; 1 Ph. 342; Fletcher v. Fletcher, 4 Hare 
67; Ward v. Audland, 8 Bea. 201. 

^ By the recent case of Kekewich v. Manning, 1 De G., M. & Gord. 176, 
it is now established in England, contrary to several previous decisions, 
that a voluntary assignment of an equitable or reversionary interest, or of 
a chose in action, will be enforced in equity, where the assignor has done 
all in his power to make the transaction complete. The fact that the legal 
title cannot pass in such case, is held to be immaterial : s. p. Voyle v. 
Hughes, 18 Jur. 341 ; 2 Sm. & Giffard 18. But the rule still remains the 
same where the assignor has not done all in his power, and which the na- 
ture of the property is capable of, as a transfer of stock, where it is assigned : 
Beech v. Keep, 18 Bea. 285; Bridge v. Bridge, 16 Id. 315; Hill v. The 
Rockingham Bank, 44 N. II. 567 ; see Milroy v. Lord, 8 Jur. N. S. 806 ; 
and the classification of the cases on this subject in Hill on Trustees 139, 
142, notes, 4th Am. ed. 



196 ADAMS's DOCTRINE OF EQUITY. 

The second requisite is, that the mutual enforcement of 
the contract in specie be practicable, i. e., that the contract 
be one which the defendant can fulfil; and the fulfilment 
of which on his part, and also on the part of the plaintiff, 
can be judicially secured. 

If the defendant cannot fulfil the contract which he 
has made, it may be a ground for exempting the plaintiff 
from costs on the dismissal of his bill, but it cannot autho- 
rize the Court to decree an impossibility. Such, for ex- 
ample, is the case, where the vendor of property has no 
estate, or only a limited estate therein ;(w) where he holds 
r^o-i-j it as a *trustee without authority to sell;(o) or 
where, being the absolute owner at the time of his 
contract, he subsequently conveys to a stranger who is 
ignorant of the prior sale, and is therefore bound by no 
equity to give it effect. In this last case, the vendor's 
misconduct may be a ground for charging hiin with costs, 
but a decree for performance of the contract is obviously 
impossible, and there is no jurisdiction in equity to give 
damages for the breach. (^) 

A similar obstacle is sometimes occasioned, where, after 
a contract has been made, the property which it affects 
descends or is devised to persons, who by reason of infancy 
or of the limited nature of their estate, are unable to make 
the requisite conveyance.^ The effect of an incapacity of 

(n) Maiden v. Fyson, 9 Bea. 347. 
(o) Mortlock V. Buller, 10 Ves. 292. 

{p) Todd V. Gee, 17 Ves, 273 ; Jenkins v. Parkinson, 2 M. & E. 5 ; Sains- 
bury V. Jones, 2 Bea. 462 ; Nelson v. Bridges, Id. 239. 

* The contract of the ancestor was decreed to be performed by the infant 
heir-at-law, who was allowed six months after coming of age to show 
cause : Glaze v. Drayton, 1 Dessaus. 109 ; W^ilkinson v. Wilkinson, a minor, 
1 Id. 201. The subject-matter must, however, have been fixed : Ferris v. 
Irving, 28 Cal. 645. Where specific performance of a contract would be 



OF SPECIFIC PERFORMANCE. 197 

this kind is not to oust the jurisdiction of equity, but to 
delay its exercise until the requisite capacity is attained. 
The inconvenience, however, has been remedied by a 
recent statute, and it is enacted that in such cases, after 
a decree has been made for specific performance, the Court 
may direct a conveyance in the same manner as in the 
case of an incapacitated trustee. ($') A corresponding 
authority is given by another statute, where a contract- 
ing party becomes lunatic after a contract has been 
made.(r) 

If the defendant, though able to fulfil his contract, 
cannot be judicially compelled to do so, the jurisdiction 
of equity is equally at an end. Such, for example, is 
the case where a tradesman has contracted to sell the 
goodwill of a business, unconnected with any specific pro- 
perty, or where an actor has engaged to perform at a par- 
ticular theatre ;^ for the Court is incompetent to tell the 

(2) 1 Wm. 4, c. 60, 88. 16 & 17. (r) 1 Wm. 4, c 65, s. 27. 

decreed between the original parties to a contract, it will be decreed be- 
tween all claiming under them, if there are no intervening equities con- 
trolling the case: Hays v. Hall, 4 Porter 374 ; MaMorris v. Crawford, 15 
Ala. 271 ; Brewer c. Brewer, 19 Id. 481 ; Nesbit v. Moore, 9 B, Monr. 
508 ; Tiernan v. Roland, 15 Penn. St. 429 5 Guard v. Bradley, 7 Ind. 600 ; 
Hill V. Ressegieu, 17 Barb. (N. Y.) 162; Moore v. Burrows, 34 Id. 173; 
Hunter v. Bales, 24 Ind. 299 ; Laverty ». Moore, 33 N. Y. 658 ; see Van 
Doren v. Robinson, 1 Green (N. J.) 256. 

^ Hamblin r. Dinneford, 2 Edw. Ch. 529. A court will sometimes re- 
strain the infringement of negative covenants though it cannot specifically 
enforce the whole contract : see Lumley r. Wagner, 1 De G., M. & G. 604 ; 
De Mattos v. Gibson, 4 De G. & J. 276 ; also Peto v. The Railroad Co., 1 
Hem. & M. 468 ; post 207 note. A contract for personal services of an 
uncertain duration will not be enforced: Firth v. Ridley, 33 Bea. 516, ap- 
proved by the Lord Justices June 30, 1864 ; or a contract for the perform- 
ance of a continuous series of duties, the non-performance of which can 
only be punished by repeated attachments : Blackett v. Bates, L. R. 1 Ch. 
App. 117 ; though see Furman v. Clark, 3 Stockt. 306. The court will not 



198 ADAMs's DOCTRINE OF EQUITY. 

actor what parts he shall perform, or how he shall perform 
them ; or to tell the tradesman how he shall induce his 
r*82T customers to employ his *asignees. (s) Such again 
is a contract for entering into a partnership, where 
no term is fixed for its duration, and where the decree 
might therefore be nullified by an immediate dissolution; 
or for granting a lease, where the term contracted for 
has expired before the hearing of the cause. It seems, 
however, that if special cause be shown, the Court may 
insist on such a lease being executed ; and dated as of 
the time when it ought to have been made, and may com- 
pel the lessor to admit such date as the true one in any 
proceeding at law.(^) 

If, when the cause comes on for hearing, the plaintiff's 
part of the agreement has not been performed, and its 
fulfilment by him cannot be secured, there is a want of 
mutuality between the parties.^ And such want of mu- 

(s) Coslake v. Till, 1 Russ. 376 ; Kemble v. Kean, 6 Sim. 333 ; Diet- 
richsen v. Cabburn, 2 Ph. 52; [Fitzpatrick v. Nowlan, 1 Irish L. & Eq. N. 
S. 671.] 

{t) Hercy v. Birch, 9 Ves. 357 ; Nesbitt v. Meyer, 1 Sw. 223. 

specifically enforce a contract to run a railroad : Port Clinton R. R. Co. v. 
The Cleveland & Toledo R. R. Co., 13 Ohio N. S. 544. Specific performance 
of a contract to build a railroad will not be decreed. Such a work requires 
too long a time for its performance to be conducted under orders and de- 
crees of chancery : Ross v. Union Pacific R. R., 1 Woolw. 26 ; Fallon v. R. 
R. Co., 1 Dill. 121. 

^ The contractor agreement sought to be enforced, must be mutual, and 
the tie reciprocal, or a Court of Equity will not enforce a performance : 
McMurtrie v. Bennett, Harring. Ch. 124 ; Hawley v. Sheldon, Id. 420 ; 
Hutcheson v. McNutt, 1 Ham. 14 ; Cabeen v. Gordon, 1 Hill Ch. 51 ; 
Benedicts. Lynch, 1 John. Ch. 370; Ohio v. Baum, 6 Ham 383; Tyson 
V. Watts, 1 Md. Ch. 13; Bronson v. Cahill, 4 McLean 19; Southern Life 
Ins. Co. V. Cole, 4 Florida 359 ; Duvall v. Myers, 2 Md. Ch. 401 ; Stout- 
enbergh v. Tompkins, 1 Stock. 332; Hoen v. Simmons, 1 Cal. 119; Cor- 
son V. Mulvany, 49 Penn. St. 88 ; Hawralty v. Warren, 3 Green (N. J.) 



OF SPECIFIC PERFORMANCE. 199 

tuality, though it may not in all cases absolutely exclude 
the jurisdiction, is a material ingredient in restraining its 
exercise. For example, where an agreement had been 
made between the plaintiff and the defendant, that the 
plaintiff should supply certain acids for the defendant, and 
that the defendant should purchase them from the plain- 
tiff alone, the Court refused to restrain the defendant 
from purchasing elsewhere, because it could not compel 
the plaintiff to furnish all the acids which might be re- 
quired. And it has been held on the same principle, that 
an infant cannot sustain a suit for specific performance of 
a contract made by him, for, if a decree were made in his 
favor, it would be impossible to compel him to execute 
that decree, (m) 

The third requisite is, that an enforcement in sjjecie be 
necessary, i. <?., it must be really important to the plain- 
tiff, and not oppressive on the defendant. 

*It must be really important to the plaintiff; for ri^Qo-\ 
the equitable remedy is not concurrent with the 
legal one, but supplemental to it, and will not there- 

[u] Hill i\ Crolls, 2 Ph. 60 ; Fight v. Bolland, 4 Russ. 298 ; Bozon v. 
Farlow, 1 Meriv. 409 ; Pickering r. Bishop of Ely, 2 N. C. C. 249 ; Salis- 
bury r. Hatcher, 2 N. C. C. 54 ; Dietrichsen v. Cabburn, 2 Ph. 52 ; Rolfe 
». Rolfe, 15 Sim. 88 ; [Hargrave v. Hargrave, 12 Beav. 408.] 

Eq. 124 ; Jones v. Noble, 3 Bush (Ky.) 694 ; Marble Co. v. Ripley, 10 
Wall. 339. Thus, where by the terms of sale, title is to be absolute, and 
purchase-money to be paid within a certain period, or a re-sale, it seems 
specific performance will not be decreed in favor of the vendor, on a bill 
filed after the expiration of that period : Bodine v. Glading, 21 Penn. St. 
54 : see, however, Roberts v. Donny, 3 De G., M. & G. 284. As to the 
necessity of performance and diligence on the part of the complainant: 
see Thorp v. Pettit, 1 Gr. {N. J.) 448 ; Ely r. McKay, 12 Allen (Mass.) 
323; Gentry tJ. Rogers, 40 Ala. 442; Gale v. Archer, 42 Barb. (N. Y.)320. 
A tender of performance need not be made when it would be wholly 
nugatory : Kerr r. Purdy, 50 Barb. (N. Y.) 24. 



200 ADAMS's DOCTRINE OF EQUITY. 

fore be substituted for such legal remedy, unless a par- 
ticular necessity be shown.^ In accordance with this 
principle, specific performance may be enforced of con- 
tracts for the sale of land, of shares in a public com- 
pany, (v) or of a life annuity ; {w) for refraining from specific 
injurious acts, and generally for any purpose, where the 
specific thing or act contracted for, and not mere pecuni- 
ary compensation, is the redress practically required. (:r)^ 
On the other hand, it will not ordinarily be decreed on a 
contract for the sale of stock or goods ; because with a 
sum equal to the market price, the plaintiff may buy 
other stock or goods of the same description, (y)^ On the 
same principle, a covenant to repair a house, or to put 
lands into a particular state of cultivation, will not be en- 
forced in equity ; for the matter really in controversy is 
nothing more than the cost of employing some other per- 

(») Duncuft V. Albrecht, 12 Sim. 189 ; Colombine v. Chichester, 2 Ph. 
27. 

(«j) Withy V. Cottle, 1 S. & S. 174; Clifford v. Turrell, 1 N. C. C. 138. 

(a) Adderley v. Dixon, 1 S. & S. 610. 

(y) Cud V. Rutter, 1 P. W. 570 ; Doloret ». Rothschild, 1 S. & S. 590 ; 
Adderley v. Dixon, 1 S. & S. 610. 

' Mead v. Camfield, 3 Stockt. 38. 

* An agreement between a creditor and a third person, founded on a 
valuable consideration, to compromise the claim of the former against his 
debtor, will be specifically enforced by a Court of equity : Phillips v. Ber- 
ger, 8 Barb. S. C. 527. 

Specific performance of an agreement for insurance may be decreed even 
after a loss: Tayloe v. Merchants' Fire Ins. Co., 9 How. U. S. 390; Car- 
penter w.Mutual Safety Ins. Co., 4 Sandf. Ch. 408 ; see Neville v. Mer- 
chants' Ins. Co., 19 Ohio 452 ; and the Court, having obtained jurisdiction, 
may then go on and give the suitable relief: Tayloe v. Ins. Co., ut sup. 

^ Maulden v. Armistead, 18 Ala. 500 ; and see ante, p. 77, note. It is 
not by itself a sufficient ground of demurrer, that a bill seeks specific per- 
formance of a contract with regard to personal property : Carpenter ». 
Mutual Safety Ins. Co., 4 Sandf. Ch. 408. See Cheales v. Kenward, 3 De 
G. & J. 27 ; stated ante, note to p. 80. 



OF SPECIFIC PERFORMANCE. 201 

son to do the work. In the case of a contract for build- 
ing a house, and not for repairing only, the application of 
the principle is doubtful; but if the building be one which 
the defendant only can erect, and the non-erection of 
which cannot be compensated by money, the jurisdiction 
is clear, and the Court will see that the work is properly 
dojie.{sy 

It must not be oppressive on the defendant. If its 
importance to the plaintiff be shown, a material step is 
gained towards obtaining a decree. But the establishment 
of this fact is not conclusive ; for however important 
specific performance may be to the plaintiff, yet he has at 
all events another remedy by damages at law ; and it is 
therefore open to the defendant to contend that a wrong 
*would be inflicted on him by going beyond the rncci-] 
ordinary remedy, greater than would be inflicted 
on the plaintiff by refusing to interpose. («)^ Specific 
performance wiU accordingly be refused, if there has been 
misrepresentation by the plaintiff on a material point, 
although it may not be sufficient to invalidate the con- 

(z) Errington v. Aynesly, 2 B. C. C. 342 ; Flint v. Brandon, 8 Ves. 164; 
Storer v. Great Western Railway, 2 N. C. C. 48. [See Birchett». Boiling, 
5 Munf. 442.] 

(a) Wedgwood ». Adams, 6 Bea. 600. 

^ But an agreement to build a house of a given value, and according to 
a plan to be agreed upon, cannot be specifically enforced, when neither 
plan nor specifications have been under the consideration of the parties : 
Brace v. Wehnert, 27 L. J. Ch.572; 4 Jur. N. S. 549. Specific performance 
will be decreed of land, though it appear that it is valuable only on ac- 
count of the timber upon it ; equity acting in such case merely on the 
ground of the subject being land : Kitchon v. Herring, 7 Ired. Eq. 190. In 
the recent case of Clayton v. lUingsworth, 10 Hare 451, however, specifie 
performance of an agreement for a mere tenancy from year to year, was 
refused, because the breach was susceptible of compensation by damages. 

2 Webb V. Direc. London & Portsmouth R. R. Co., 1 De G., M. & Gord. 
52 ; Bowles v. Woodson, 6 Gratt. (Va.) 78. 



202 'adams's doctrine of equity. 

tract ; (b) if he has induced the defendant to execute a 
written agreement, on the faith of his verbal promise that 
it shall be subsequently altered ;(c) or if after making a 
contract in writing, he has put an end to it by parol waiver,^ 
although it is doubtful whether such a waiver would be 
good at law in respect of a contract affected by the Statute 
of Frauds. (6?) 2 

(6) Cadman v. Horner, 18 Yes. 10 ; Clermont v. Tasburgh, 1 J. & W. 
112; Brealey v. Collins, You. 317 ; 1 Sug. Y. & P. 338 ; Nelthorper. Hol- 
gate, 1 Coll. 203. 

(c) Clarke v. Grant, 14 Yes. 519; Omerod v. Hardman, 5 Id. 722; 
Att.-Gen. V. Jackson, 5 Hare 366. 

[d) Goss V. Lord Nugent, 5 B. & Ad. 58 ; Robinson v. Page, 3 Russ. 114, 
119 ; 1 Sug. Y. & P. ciii, s. 9. 

1 HuflFman v. Hummer, 3 Green (N. J.) 83 ; Ryno v. Darby, 20 N. J. 
Eq. 231. 

^ Where a contract is hard, and destitute of all equity, the court will 
leave the parties to their remedy at law ; and if such remedy has been lost 
by negligence, they must abide the consequences : King v. Hamilton, 4 
Pet. 311 ; Western Railroad Corporation v. Babcock, 6 Met. 346 ; Perkins 
V. Wright, 3 Har. & McHen. 324 ; Leigh v. Crump, 1 Ired. Gh. 299 ; Hall 
V. Ross, 3 Heyw. 200 ; Rice v. Rawlings, Meigs 496 ; Eastland v. Yanarsdel, 
3 Bibb 274 ; Wingart v. Fry, Wright 105 ; Edwards v. Handley, Hardin 
602 ; Cannaday v. Shepard, 2 Jones Eq. 224 ; Bowen v. Waters, 2 Paine 
C. C. 1. And when one of the parties to a contract has been guilty of 
unfair conduct, in relation to the contract of which he seeks the specific 
performance, his bill will be dismissed, and he will be left to his legal 
remedy : Thompson v. Tod, Pet. C. C. 380 ; Frisby v. Ballance, 4 Scam. 
287 ; Berry v. Cox, 8 Gill 466. So where the contract is unreasonable : 
McWhorter v. McMahan, 1 Clarke 400. And where it is entered into for 
the purpose of defrauding a creditor : St. John v. Benedict, 6 John. Ch. 
111. Or was not originally honest and fair : Carberry v. Tennehill, 1 Har. 
& J. 224', Harris v. Smith, 2 Cold. (Tenn.) 306 ; Cufi^ v. Borland, 55 Barb. 
(N. Y.) 481 ; McClellan v. Darrah, 50 HI. 249; Wells i'. MiUett, 23 Wis. 
64. But a mere increase of the value of the land subsequent to the con- 
tract, will not be a ground for refusing specific performance : Young v. 
Wright, 4 Wis. 144. The intoxication of a purchaser at the time of sale, 
will not be ground for refusing to enforce specific performance of the con- 
tract against him, unless it appear that his intoxication was produced or 
procured by the vendor, or that undue advantage was taken of it : Maxwell 



OF SPECIFIC PERFORMANCE. 203 

In accordance with the same principle, it is held that 
where specific performance is asked of a contract for the 
purchase of real estate, the defendant may have the title 
examined by a master;^ so that its validity may be sifted 
in a way which w^ould not be possible on a mere abstract, 
authenticated as the vendor thinks proper, and that, in 
consideration of the relief sought beyond the laAv, he may 
have an assurance about the nature of his title, such as 
he cannot have elsewhere. (^) If the investigation shows 
a reasonably clear and marketable title, specific perform- 
ance will be compelled. But if there be a rational doubt 
on its validit}", the Court, though it may be of opinion 
that the title is good, will not compel the purchaser's ac- 
ceptance, but will leave the parties to law.(/)^ 

(e) Jenkins v. Hiles, 6 Ves. 646, 653. 

(/) Stapylton v. Scott, 16 Ves. 272; Jervoise v. Dnke of Northnmber- 
land, IJ. & W. 539, 549. 

V. Pittenger, 2 Green Ch. 156; Rodman ». Zilley, Saxton320 ; Whitesides 
V. Greenlee, 2 Dev. Ch. 152 ; Shaw v. Thackray, 17 Jur. 1045 ; 1 Sm. & 
Giflf. 537 ; Morrison v. McLeod, 2 Dev. & Batt. Eq. 221 ; Harbison v. Le- 
mon, 3 Blackf. 51 ; Belcher v. Belcher, 10 Yerg. 121 ; Crane v. Conklin, 
Saxt. Ch. 346 ; Calloway v. Witherspoon, 5 Ired. Eq. 128 ; contra, Prentice 
V. Achorn, 2 Paige 30. 

^ Where the court is satisfied on the hearing that there can be no fuller 
investigation of the title, and that all the facts are before the court, and is 
satisfied that objections exist to the title, which from their nature cannot 
be removed, it will not direct a reference to a master : Dominick v. Michael, 
4 Sandf. S. C. 374. 

"^ Butler w. O'Hear, 1 Dessaus. 382; Longworth ». Taylor, 1 McLean 
395 ; Watts V. Waddle, 6 Pet. 389 ; Bates v. Delavan, 5 Paige Ch. 299 ; 
Winne v. Reynolds, 6 Id. 407 ; Dutch Church v. Mott, 7 Id. 77 ; Gans v. 
Renshaw, 2 Barr 34 ; Fitzpatrick v. Featberstone, 3 Ala. 40 ; Beckwith v. 
Kouns, 6 B. Monr. 222 ; Hepburn v. Auld, 5 Cranch 262, 275; Owings v. 
Baldwin, 8 Gill 337 ; Thomjison v. Dulles, 5 Rich. Eq. 370 ; St. Mary's 
Church V. Stockton, 4 Halst. Ch, (N. J.) 520; Laurens v. Lucas, 6 Rich. 
Eq. 217 ; Lowry v. Muldrow, 8 Id. 241 ; Chambers v. Tulane, 1 Stockt. 
(N. J.) 146 ; Freetly v. Barnhart, 51 Penn. St. 279 ; Speakman v. Fore- 
paugh, 44 Id. 363 ; Doeblers Appeal, 64 Id. 9 ; Littlefield v. Tinsley, 26 



204 ADAMS'S DOCTRINE OF EQUITY. 

Specific performance may be refused where the defend- 
ant has by mistake, not originating in mere carelessness, 

Tex. 353 -, Griffin v. Cunningham, 19 Gratt. (Va.) 571 ; Swain v. Fidelity 
Ins. Co., 54 Penn. St. 455 ; Linkhouse v. Cooper, 2 W. Va. 67. For a dis- 
cussion of doubtful title, see Mullings v. Trinder, 10 Eq. Cas. L. R. 449. 
The cases in which courts of equity have refused their aid to the vendor, 
where they have considered his title good, though disputable, are cases of 
real and serious difficulty. Omissions in the judicial process through which 
the title passed, which omissions could be supplied by amendment, by the 
court in which the proceedings were had, will not be considered as suf- 
ficient : Dalzeil v. Crawford, 1 Pars. Eq. 57. A purchaser will not be 
compelled to accept a title depending upon an illegal sale, while it remains 
open to revision at the discretion of a court of law : Young v. Rathbone, 1 
Green (N. J.) 224. 

If in the progress of a suit for specific performance of a real contract, 
objections to a title are discovered, never made during the negotiations, the 
defendant cannot insist on such objections as excusing him from perform- 
ance, if the plaintifi" is able and willing to remove them when first pointed 
out: Dalzeil ». Crawford, ut sup. In the same case it was laid down as 
the doctrine of the court, that adverse opinions of conveyancers and coun- 
sel alone, are not sufficient ground to refuse a decree for specific perform- 
ance of a contract for the purchase of land : Id. 37. 

Perhaps the law was stated in Dalzeil v. Crawford, rather more broadly 
than in some other cases, and than was necessary for a decision on the 
facts. It is certainly clear that a purchaser ought not to be forced into a 
possible litigation, merely because the opinion of the court, which binds no 
one but himself, happens to be in favor of the title. In a recent case in 
England (Pyrke v. Waddingham, 10 Hare 1), a stricter rule was acted on. 
The following propositions were deduced from a careful examination of 
the authorities: A doubtful title, which a purchaser will not be compelled 
to accept, is not only a title upon which the court entertains doubt, but in- 
cludes also a title which, although the court has a favorable opinion of it, 
yet may reasonably and fairly be questioned, in the opinion of other com- 
petent persons ; for the court has no means of binding the question as 
against adverse claimants, or of indemnifying the purchaser, if its own 
opinion in favor of the title should turn out not to be well founded. If 
the doubts, as to a title, arise upon a question connected with the general 
law, the court is to judge whether the general law on the point is or is not 
settled ; and if it be not, or if the doubts as to the title may be aS'ected by 
extrinsic circumstances, which neither the purchaser nor the court can 
satisfactorily investigate, specific performance will be refused. 

The rules thus stated rest upon the fundamental principle, that every 



OF SPECIFIC PERFORMANCE. 205 

*entered into a contract framed differently from his r*o r-i 
own intention J notwithstanding that there is no 

purchaser is entitled to require a marketable title, and it is only an in- 
dubitable title that is a marketable one : Swayne v. Lyon, 67 Penn. St. 
436. It is further the duty of the court on questions of title depending on 
the possibility of future rights arising, to consider the course which should 
be taken if the rights had actually arisen and were in course of litigation : 
Pyrke v. Waddinghan, 10 Hare 1. See Sohier v. Williams, 1 Curtis C. 
C. 479. '' To force a title on a purchaser," said the Vice-Chancellor in 
Rogers v. Waterhouse, 4 Drew. 329, " the opinion of the Court in favor 
thereof must be so clear that it cannot apprehend that another judge may 
form a different opinion." See also Pegler v. White, 33 Beav. 403 ; Howe 
V. Hunt, 31 Id. 420. A vendor may make an agreement for the sale of 
his title, such as it is, and this agreement will be specifically enforced : 
Hume V. Pocock, L. R. 1 Eq. 423-662 ; L. R. 1 Ch. App. 679. 

Though equity will not compel a vendee to take a bad title, yet a pecu- 
niary charge against a good title presents no objection, provided the pur- 
chaser can be protected against it : Tiernan r. Roland, 15 Penn. St. 441. 
See Cox r. Coventon, 31 Beav. 378; Wood r. Majoribanks, 3DeG. & J. 329; 
7 H. L. Cas. 806. And the pendency of a suit for the land, which is 
found on investigation to be groundless, is no reason for refusing specific 
performance : Owings v. Baldwin, 8 Gill 337. When a proposed vendee 
buys in the reversion, and then refuses to complete the contract, he may 
be compelled to do so, with an allowance for what he has paid : Murrell 
r. Goodyear, 1 De G., F. & J. 432. 

A court of equity will decree a specific performance of a contract for 
the sale of lands, if the vendor is able to make a good title at any time 
before the decree is pronounced : Hepburn r. Dunlop, 1 Wheat. 179 ; Bald- 
win V. Salter, 8 Paige 473 ; Hepburn r. Auld, ubi supra; Graham r. Hack- 
with, 1 Marsh. 423 ; Tyree v. Williams, 3 Bibb 366 ; Seymour r. Delancy, 
3 Cowen 445; Moss v. Hanson, 17 Penn. St. 379; Tieman v. Roland, 15 
Id. 429 ; Richmond v. Gray, 3 Allen 25 ; Luckett v. Williamson, 37 Mo. 
388. And where a vendor of land cannot make a valid title to the whole 
land sold, the vendee may insist upon the specific performance by the ven- 
dor, so far as such vendor can execute it : Jacobs v. Locke, 2 Ired. Ch. 286 ; 
Henry v. Liles, Id. 407 ; Ketchum r. Stout, 20 Ohio 453 ; Collins v. Smith, 
1 Head 251. The court will order a return of the deposit money with in- 
terest, where the vendor cannoi show a good title, and will give the ven- 
dee a lien on the estate for the same and for costs : Turner v. Marriott, 3 
Eq. L. R. 744. 

When the performance of a contract of purchase is resisted upon grounds 
wholly independent of the validity of the title, and the objections of the 



206 ADAMS's DOCTRINE OF EQUITY. 

unfairness on the plaintiff's part, and no defect or doubt 
in his title ;(y) and even the mere fact that the contract 
is a hard one, and would press heavily on the defendant, 
has in some cases been considered a ground for refusing 
to interfere. (A) ^ • 

{g) Clowes v. Higginson, 1 Ves. & B. 524 ; commented on in 1 Sug. V. 
& P. 228 ; Townsend v. Stangroom, 6 Ves. 328 ; Mallins v. Freeman, 2 K. 
25 ; Kennedy v. Lee, 3 Meriv. 441. 

(A) Wedgwood v. Adams, 6 Bea. 600 ; Talbot v. Ford, 13 Sim. 173 ; 
Pickering ». Ely, 2 N. C. C. 249, 266. 



purchasers are overruled ; or when the purchaser, although doubtful of the 
title, consents by his answer to accept it when in the judgment of the court it 
can be rendered valid, it is sufficient to warrant a decree for a specific per- 
formance that a good title can be made within a reasonable time, before 
the final decree. But when it appears that the purchaser rejected the 
title offered, as insufficient, and upon that ground refused and still refuses 
to complete the contract, the entire controversy turns upon the validity of 
the objections, and if they are sufficient, the court will not decree a specific 
performance: Dominick v. Michael. 4 Sandf. (S. C.) 374. When objec- 
tions to the title must be taken, see Lyle v. Yarborough, John. 70. 

' James v. State Bank, 17 Alab. 69; King v. Hamilton, 4 Peters 311 ; 
Bradbury v. White, 4 Greenl. 391 ; Yancy v. Green, 6 Dana 444 ; Orear v. 
Tanner, 1 Bibb 237 ; Frisby v. Ballance, 4 Scam. 287 5 Western Railroad 
Company w. Babcock, 6 Met. 346; Morss v. Llmendorf, 11 Paige 277; 
Coles et al., Ex'rs., v. Bowne, 10 Id. 526 ; Schmidt v. Livingston, 3 Edw. 
Ch. 213 ; Helling v. Lumley, 5 Jur. N. S. 301 ; where the defendant 
was compelled to perform his contract, altliough the performance might 
occasion a. forfeiture of this lease. 

But where a mistake is a matter deemed perfectly immaterial by both 
parties at the time of the contract, which would not have varied it if it had 
been known, and of which both parties were equally ignorant, and where 
the contract is an advantageous one to the purchaser, qucere, whether a 
Court of equity should interfere ; McFerran v. Taylor, 3 Cranch 270. And 
a Court of equity will carry into effect the original intention of the parties 
when defectively expressed in an instrument through fraud or mistake : 
Hunt V. Freeman, 1 Ham. 490. For the principle in which the court pro- 
ceeds in cases of mistake, see Swaisland v. Dearsley, 29 Beav. 430. It has 
been held in several cases in the United States, that a bill will lie to cor- 
rect an agreement as to lands, for mistake, upon parol evidence, and for 



OF SPECIFIC YERFORMANCE. 207 

In applying the equity of specific performance to real 
estate, there are some modifications of legal rules, which 
at first sight appear inconsistent with them, and repug- 
nant to the maxim, that "equity follows the law." The 
modifications here referred to are those of enforcing parol 
contracts relating to land, on the ground that they have 
been already performed in part; of allowing time to make 
out a title beyond the day which the contract specifies ; 
and of allowing a conveyance with compensation for de- 
fects. The wisdom of permitting any deviation is a subject 
admitting of much doubt. But the particular doctrines 
now in question are firmly established by the course of 



specific performance of the agreement as corrected ; or, on the other hand, 
that the defendant in a bill for specific performance, may by his answer set 
up mistake, and entitle himself to specific performance of the reformed 
agreement, against the claim of the complainant to have his bill dismissed, 
notwithstanding the Statute of Frauds: Wall r. Arrington, 13 Geo. 88 ; 
Mosby V. Wall, 1 Cushm. (Miss.) 81 : Philpott v. Elliott, 4 Md. Ch. 273 ; 
Moale V. Buchanan, 11 Gill & John. 325 ; Tilton v. Tilton, 9 2^. H. 385; 
Bellows r. Stone, 14 Id. 175 ; Bradford v. Union Bank, 13 How. U. S. 57 ; 
Gillespie r. Moon, 2 John. Ch. 585 ; Keisselbrock v. Livingstone, 4 John. 
Ch. 144. And this doctrine is strongly approved by Judge Story, Eq. Jur. 
§§ 160, 161, &c. But in other American cases, as Elder v. Elder, 10 Maine 
80; Osborn v. Phelps, 19 Conn. 63 ; Westbrook v. Habeson, 2 McCord Ch. 
112; Brooks v. Wheelock, 11 Pick. 439; Miller v. Chetwood, 1 Green. 
Ch. 199 ; Dennis v. Dennis, 4 Rich. Eq. 307 ; Best v. Stow. 2 Sandf. Ch. 
298 ; Climer v. Hovey, 15 Mich. 18 ; and in England, WooUam v. Heam, 
7 Ves. Jr. 211 ; Nurse v. Lord Seymour, 13 Beav. 254, it is held that 
though in such cases mistake is good ground for refusing specific perform- 
ance, that being within the discretion of a chancellor, it cannot furnish a 
reason for active relief by the execution of the agreement, in the face of 
the Statute of Frauds. For, it is obvious that if any part of the agree- 
ment remain in parol, the w*ole must be so, to all intents and purposes. 
This view is supported also by Judge Hare, in the able note to Woollam 
V. Hearn, 2 Lead. Cases Eq., part i., 404. Where, however, the agreement 
is executed by part performance, it is agreed on all hands, that in this, as 
in other cases, the question is no longer governed by the statute : Ibid. 
See, Gilroy v. Alls, 22 Iowa 174. 



208 ADAMS's DOCTRINE OF EQUITY. 

precedent, and may perhaps be considered, not so much 
deviations from the rule of law, as subordinate equities, 
or developements from the original doctrine, that spe- 
cific performance of a contract, and not pecuniary com- 
pensation for its- breach, is the equitable measure of 
redress. 

The first of these subordinate equities is that of enforc- 
ing parol contracts relating to land, on the ground that 
they have been already performed in part. It is enacted 
by the Statute of Frauds, that no action shall be brought 
on any contract for sale of lands, tenements, or heredita- 
ments ; or any interest in or concerning them, unless the 
agreement or some memorandum or note thereof shall be 
in writing and signed by the party to be charged there- 
with, or some other person thereunto by him lawfully 
r*8fi1 *^^thorized.(ey Ifthe requirements of this statute 
are not complied with, a contract falling within its 
scope, so long as it remains in fieri cannot be enforced 
either at law or in equity. It sometimes, however, happens 
that a contract which is still in fieri, at law, has been 
already performed by construction of equity; for if it is 
one of which specific performance would be decreed, it is 
itself in some sort an equitable title ; and if the parties 
have clothed that title with possession, or have otherwise 
acted on it as an existing ownership, they are held to have 
perfected their agreement in equity; and if the terms of 
their parol contract can be proved, may be decreed to 
perfect it by a conveyance at law.^ 

(i) 29 Car. 2, c. 3, sf 4. 

^ It is not necessary that the party seeking specific performance should 
have signed the agreement : Old Colony R. R. v. Evans, 6 Gray 25. 

^ In nearly every state in the Union, the rule is settled, that part per- 
formance takes a parol agreement out of the Statute of Frauds. Newton ». 



OF SPECIFIC PERFORMANCE. ' 209 

The doctrine on this point is called the doctrine of part 
performance, and its principle appears to be that, if one of 

Swazey, 8 N. II. 9 : Downey v. Ilotchkiss, 2 Day 225 ; Annan v. Merritt, 
13 Conn. 478 : Pugh v. Good, 3 W. & S. 56 ; Harris v. Knickerbacker, 
5 Wend. 038 ; Parkhurst v. Van Cortland, 14 Johns. 15 ; Hall & Wife ». 
Hall et al., 1 Gill 383 ; Tilton v. Tilton, 9 N. II. 3«6 ; Wilde v. Fox, 1 
Rand. 165; Gough ». Crane, 3 Md. Ch. 119; Johnson v. McGruder, 15 
Miss. 365 ; Stoddart v. Tuck, 5 Md. 18 ; Dougan v. Blocher, 24 Penn. St. 
28; McCue r. Johnston, 25 Penn. St. 306; Printup v. Mitchell, 17 Geo. 
558; Offenhouse v. Burleson, 11 Texas 87 ; Parke v. Seewright, 20 Miss. 
85; Despain r. Carter. 21 Id. 331; Arguello v. Edinger, 10 Cal. 150; 
and see the rules upon this subject stated in Purcell v. Miner, 4 Wall. S. C. 
513 ; Chastain v. Smith, 30 Geo. 96. Though the agreement must be clearly 
and unequivocally proved : Charnley v. Hansbury, 13 Penn. St. 16; Owings 
V. Baldwin, 8 Gill. 337 ; Bracken v. Hambrick, 25 Texas 408 ; Broughton 
V. Coffer, 18 Gratt. (Va.) 184; Knoll v. Harvey, 19 Wis. 99; and must be 
shown distinctly to be referable exclusively to the contract set up in the 
bill : Duvall v. Myers, 2 Md. Ch. 401 ; Eyre v. Eyre, 4 Green (X. J.) 102 ; 
Patrick r. Ilorton, 3 W. Va. 23 ; and the remedy must be mutual : Smith 
c. McVeigh, 3 Stockt. 239 ; Meason v. Kaine, 63 Penn. St. 335 ; see also 
Van Dor^ v. Robinson, 1 Greeli (N. J.) 256. 

But in some of the states, as in Tennessee, North Carolina, Massachu- 
setts and Maine, the general rule is different. See Patton r. MeClure, 1 
Mart. & Yorg. 333 ; Ridley v. McNairy et al., 2 Humph. 174; Stearns v. 
Hubbard, 8 Greenl. 320 ; Parker v. Parker, 1 Gray 409 ; Wilton v. Har- 
wood, 23 Maine 131 ; Patterson w. Yeaton, 47 Maine 308 ; Robeson v. 
Hornbaker, 2 Green. Ch. 60; Brooks v. Wheelock, 11 Pick. 439; Wingate 
V. Dail, 2 Har. & J. 76 ; Ellis v. Ellis, 1 Dev. Eq. 341 ; Albea v. Griffin, 2 
Dev. & Bat. Eq. 9 ; Dunn v. Moore, 3 Ired. Eq. 364 ; Alien v. Chambers, 
4 Id. 125. If, however, the statute is set up, the money will be decreed 
to be refunded with interest, and as against the vendors, it will be decreed 
a lien on the land agreed to be conveyed : Hilton v. Duncan, 1 Cold. 
(Tenn.) 313. 

Payment or part payment of the purchase-money, is not such a part 
performance of a parol contract, as will take the case out of the Statute of 
Frauds: Parker t'. Wills, 6 Wharton 153; Jackson i\ Cutright, 5 Munf. 
308 ; Haight v. Child, 34 Barb. 186 ; Hatcher v. Hatcher, 1 McMullan's 
Ch. 311 ; Smith v. Smith, 1 Rich. Ch. 130; Anderson r. Chick, 1 Bailey 
Ch. 118 ; Hood v. Bowman, 1 Freem. Ch. 290 ; Bean v. Valle, 2 Miss. 126 ; 
Johnston v. Glancy, 4 Blackf. 94 ; Sites v. Keller, 6 Ham. 483 ; contra, 
Townsend v. Houston, 1 Harring. 532 ; McMurtrie v. Bennett, Harring. 
Ch. 124. But where a party who has paid the purchase-money upon a 
14 



210 ADAMS's DOCTRINE OF EQUITY. 

the contracting parties induce the other so to act, that, if 
the contract be abandoned, he cannot be restored to his 

parol contract, cannot be replaced in the same position by a recovery of 
the money paid, he will be entitled to specific performance : Malins v. 
Brown, 4 Comst. 403. See Nunn v. Fabian, L. R. 1 Ch. Ap. 35. 

When a parol contract is entered into in consideration of marriage, the 
solemnization of the marriage is not such a part performance as will take 
the case out of the Statute : Caton v. Caton, L. R. 1 Ch. Ap. 137. Part 
performance by the party sought to be charged does not take the case out 
of the statute : Id. 

The part performance of a parol agreement to devise lands will take the 
case out of the statute : Davison v. Davison, 2 Beas. 246 ; Johnson v. Hub- 
bell, 2 Stockt. 332 ; Watson v. Mahan, 20 Ind. 223. 

And where the purchaser has taken possession, paid the purchase-money, 
and made improvements thereon, equity will enforce a specific perform- 
ance : Casler v. Thompson, 3 Green Ch. 59 ; Wetmore v. White, 2 Cal. Ca. 
87 ; Ellis v. Ellis, 1 Dev. Ch. 180 [contra, s. c. 341) ; Smith v. Smith, 1 
Rich. Ch. 130 ; Massey v. Mcllwain, 2 Hill Ch. 421 ; Cox v. Cox, Peck 443 
see also Johnston v. Glancy, 4 Blackf. 94 ; Tibbs v. Barker, 1 Blackf. 58 
Moreland v. Lemasters, 4 Id. 383 ; Brewer v. Brewer, 19 Ala. 481 
School Dist. No. 3 v. MacLoon, 4 Wis. 79 ; Ramsey v. Liston, 25 111. 114 
Stevens v. Wheeler, Id. 300; Neatherly v. Ripley, 21 Tex. 434; Mime v. 
Lockett, 33 Ga. 9; Perkins w. Hadsell, 50 111. 216; Howe v. Rogers, 32 
Tex. 218 ; Freeman v. Freeman, 43 N. Y. 34. Such improvements must be 
of a permanent, nature, or of great value: Peckham v. Barker, 8 R. I. 17. 

So it is a sufficient part performance to take the case out of the Statute 
of Frauds for the purchaser to take possession of the lands sold by virtue 
of the agreement, where the assent of the vendor is shown, or is inferable : 
Smith V. Underdunk, 1 Sandf. Ch. 579 ; Pugh v. Good, 3 W. & S. 56 ; 
Moale V. Buchanan, 11 Gill & J. 314 ; Hart??. Hart, 3 Dessaus. 592 ; Ander- 
son V. Chick, 1 Bailey Ch. 118; Brock v. Cook, 3 Porter 464; Wagoner 
V. Speck, 3 Ham. 292; Palmer v. Richardson, 3 Strobh. Eq. 16. 

But it has been held that delivery of possession of a part of the land is 
not sufficient: Allen's Est., 1 W. & S. 383 ; or where the party going into 
possession made temporary improvements much less in value than the 
rent of the premises : Wack v. Sorber, 2 Wharton 387 ; see also Mims v. 
Lockett, 33 Ga. 9 ; neither is the remaining in possession of the purchaser, 
if he was in possession at the time of the purchase : Hatcher v. Hatcher, 
1 McMuUan Ch. 311 ; Johnston v. Glancy, 4 Blackf. 94; Christy v. Barn- 
hart, 14 Penn. St. 260; Mahana r. Blunt, 20 Iowa 142. The part per- 
formance must be such as would make the party asking the specific relief 
a wrongdoer in case the specific performance were not decreed. And de- 



OF SPECIFIC PERFORMANCE. 211 

former position, the contract must be considered as per- 
fected in equity, and a refusal to complete it at law is in 
the nature of a fraud. ^ Such, for instance, is the case, 
where upon a parol agreement for the purchase of an 
estate, a party, not otherwise entitled to the possession, 
is admitted thereto ; for if the agreement be invalid, he 
is made a trespasser, and is liable to answer as a tres- 
passer at law. The equity is still stronger if, after being 
let into possession, he has been allowed to build and other- 
wise to expend money on the estate. If the possession 
may be referred to an independent title, e. p., where it is 
held under a previously existing tenancy, the same prin- 
ciple does not apply, unless the parties so conduct them- 



livery of possession must have been in pursuance and part execution of 
the agreement charged in the bill : Ham t'. Goodrich, 33 N. H. 32. 

Continuance of a previous possession may be a part performance: Blan- 
chard v. McDougal, 6 Wis. 167 ; Spalding v. Conzelraan, 30 Missouri 177. 
See however Mahance v. Blunt, supra. Where a vendor files a bill for 
specific performance, part performance by the vendee cannot be used to 
take the case out of the statute : Luckett v. Williamson, 37 Mo. 388, 

For other general instances of part performance, see Phillips u. Edwards, 
33 Beav. 440 ; Pain v. Coombs, 1 De G. & J. 34 ; Rankin v. Lay, 2 De G., 
F. &. J. 72 ; Daniels v. Lewis, 16 Wis. 140 ; Peckham v. Barker, 8 R. I. 
17 ; Welsh i). Bayard, 21 N. J. Eq. 186 ; Richmond v. Foote, 3 Lans. (N. Y.) 
244 : Mason v. Blair, 33 Hi. 194; Hedrick v. Hern, 4 W. Va. 620. 

The rule has recently been stated to be in Pennsylvania, that every parol 
contract is within the Statute of Frauds, except where there has been snch 
performance as cannot be compensated in damages. " Without possession 
taken and maintained under the contract, there can be no pretence of part 
performance ; but generally," say the Court, "that is an act which admits 
of compensation, and therefore too much is made of it when it is treated 
as sufficient ground for decreeing specific performance :" Moore v. Small, 
19 Penn. St. 461, Proof of a parol contract for the sale of lands, delivery 
of possession pursuant thereto, part payment of the purchase-money and 
valuable improvements, are the full measure of what is required to take a 
case out of the statute : Milliken v. Dravo, 67 Penn. St. 230. 

^ Gilbert v. The Trustees of the East Newark Co., 1 Beas. 180 ; Arguello 
V. Edinger, 10 Cal. 150 ; Paine v. Wilcox, 16 Wis. 202. 



212 ADAMS's DOCTRINE OF EQUITY. 

selves, as to show that they are acting under the contract, 
nor does it apply to any acts which do not alter the posi- 
tion of the parties. Such, for instance, are the taking of 
surveys, the preparation of conveyances, the payment of 
earnest, and even the payment of purchase-money itself; 
for, although all these acts are in some sense a perform- 
ance of the contract, yet their consequences may be set 
r^nnn right by ^damages at law, and they do not place 
the parties in a position from which they can only 
be extricated by its completion. (X-)^ 

The same principle which establishes a parol contract 
where the title under it is sustained by part performance, 
is also applicable where the purchaser of real estate has 
waived by his conduct any objection of title.^ The general 
rule is, that a contract for the purchase of realty implies 
as one of its terms that a title shall be shown. And if 

{k) Mitf. 266 ; 1 Sug. V. & P. c. iii, s. 7 ; Wills v. Stradling, 3 Ves. 378 ; 
Cooth V. Jackson, 6 Id. 12 ; Clinan v. Cooke, 1 Sch. & L. 22, 41 ; Suther- 
land V. Briggs, 1 Hare 26-, Dale v. Hamilton, 5 Id. 369, 381 ; Mundy v. 
Joliffe, 5 M. & C. 167. 

* A written agreement will be specifically enforced in equity, according 
to its terms, although verbally another provision had been agreed to at the 
game time, though not inserted in the agreement, if the person who is to 
perform the omitted term consents to its performance : Martin v. Pycroft, 
2 De G., M. & G. 785. 

* And there is a settled distinction between the case of a vendor, coming 
into a Court of equity to compel a vendee to performance, and of a vendee 
resorting to equity to compel a vendor to perform. In the first case, if the 
vendor csvnnot make out a title as to part of subject-matter of the contract, 
equity will not compel the vendee to perform the contract j??'0 tanto. But 
where a vendee seeks a specific execution of an agreement, there is much 
greater reason for affbrding him the aid of the court, where he is desirous 
of taking the part to which a title can be made : Waters v. Travis, on ap- 
peal, 9 Johns. 450. See S. E. Railway v. Knoll, 10 Hare 122 ; Hopper v. 
Hopper, 1 Green (N. J.) 147. 



OF SPECIFIC PERFORMANCE. 213 

there be no waiver of this right in the contract, it cannot 
be afterwards waived at law by parol, for such waiver 
would in effect create a new contract to be proved partly 
by the written agreement and partly by the subsequent 
parol waiver. {I) In equity, however, the purchaser may 
accept the defective title, and by treating the contract as 
already performed, may preclude himself from insisting on 
any further title. He may, for instance, thus bind him- 
self by taking possession and doing acts of ownership after 
he is aware that objections exist, where such possession 
and acts of ownership are not authorized by his contract ; 
or he may do so by simple acquiescence.^ The waiver, 
however, must be intentional ; and his conduct is merely 
evidence from which the intention may be presumed. If, 
therefore, there be a subsequent treaty respecting objec- 
tions, the presumption of waiver is at an end.(m) And 
even if he has waived his right to call for a title, yet if 
the title be proved bad, he is not compelled to accept it, 
unless he has expressly contracted to take such title as 
the vendor has.(w) 

The second equity is that of allowing time to make out 
*a title beyond the day which the contract speci- r*oo-i 
fies. It is an obvious principle, both of law and 
of equity, that no one can have a contract enforced in his 

{I) Gos8 V. Lord Nugent, 5 B. & Ad. 58. 

(m) Knatehbull r. Grueber, 1 Mad. 153, 170 5 Burroughs p. Oakley, 3 
Sw. 159 ; Calcraft v. Roebuck, 1 Ves. J. 221 ; Osborne v. Harvey, 1 N. C. C. 
116 ; 2 Sug. V. & P. c. viii, s. 1. 

(n) Warren r. Richardson, You. 1 ; Blachford v. Kirkpatrick, 6 Bea. 
232; Duke v. Barnett, 2 Coll. 337. 

' Palmer p. Richardson, 3 Strob. Eq. 16. If the vendee wishes to rescind 
the contract, he must give up possession, or do some other act indicating 
his intention : Thompkins r. Hyatt, 28 N. Y. 347 ; MuUin r. Bloomer, 
11 Iowa 360. 



214 ADAMS's DOCTRINE OF EQUITY. 

favor, unless he has performed, or is ready to perforin, 
his own part. And it would apparently follow from this 
principle that, if the seller of an estate has contractf d to 
show a title by a specified day, and has failed to do so, 
he cannot afterwards enforce his contract. This conclu- 
sion is accurate with respect to proceedings at law, but is 
modified in equity by the doctrine already noticed, that 
the 'Contract itself is in the nature of a title. And it is 
accordingly held that if a substantial ownership exists, 
though the title be not fully cleared on the appointed day, 
specific performance may be decreed ; and the Court may 
rectify the incidental delay by giving the intermediate 
rents to the purchaser, and interest on the purchase- 
money to the vendor. 

The doctrine on this point is expressed by the maxim 
that "time is not of the essence of a contract in equity."* 

It is not, however, to be understood from this maxim 
that time cannot be made of the essence of the contract. 
The mere fact that a day has been specified for comple- 
tion, will not per se render it essential. But the parties 
may contract on what terms they will, and may declare, 
if they think fit, that it shall be so considered. The 
same conclusion may be drawn by implication from the 
nature of the property to which the contract refers; as, 
for instance, if it be property in reversion, or if it be re- 
quired for the purposes of a trade or manufactory, or be 
of a fluctuating value. If time is not originally declared 
essential, it cannot I)e made so by either party alone. 
But if delay takes place, the aggrieved party may give 

* Remington v. Irwin, 14 Penn. St. 143 ; Bryson v. Peak, 8 Ired. Eq. 
310; Glover v. Fisher, 11 111. 666; Tiernan v. Roland, 15 Penn. St. 429; 
Parkin v. Thorold, 16 Jur. 959 ; Pegg v. Wisden, 16 Beav. 246 ; Roberts 
V. Denny, 3 De G., M. & G. 284 ; Emmons v. Kiger, 23 Ind. 483. 



OF SPECIFIC PERFORMANCE. 215 

notice that he abandons the contract, and if the other 
makes no prompt assertion of his right, he will be consi- 
dered as acquiescing in such notice, and as abandoning 
his equity for specific performance, (o.)^ 

(o) Walker r. JeflFreys, 1 Hare 341, 348 ; King v. Wilson, 6 Bea. 124 ; 
1 Sug. V. & P. c. V. 

' Time is not generally of the essence of the contract, but where it ap- 
pears that time is really material to the parties, the right to a specific per- 
formance may depend on it : Garnett v. Macon, 2 Brock. 185 ; s. c. 6 Call. 
308 : Garretson v. Vanloon, 2 Iowa 128 ; Armstrong v. Pierson, 5 Clarke 
(la.) 317 ; Scarlett v. Hunter, 3 Jon. Eq. 84; Morris v. Hoyt, 11 Mich. 9 ; 
Du Bois V. Baum, 46 Penn. St. 537 ; Edwards v. Atkinson, 14 Texas 373 ; 
Keller v. Fisher, 7 Ind. 718; Potter r. Tuttle, 22 Conn. 513; Wells o. 
Maxwell, 32 Beav. 408 ; Morgan v. Scott, 26 Penn. St. 55 ; Hanna v. Rate- 
kin, 43 111. 462 ; Andrews v. Bell, 56 Penn. St. 343 ; Miller v. Henlan, 51 
Id. 265 ; Spaulding r. Alexander, 6 Bush (Ky.) 160. And where by lapse 
of time the value of the property is greatly diminished, performance will 
not be compelled : McKay v. Carrington, 1 McLean 50. So where the 
vendee has purchased to sell, time is of the essence of the contract : Id. 
See also, Benedict r. Lynch, 1 John. Ch. 370 ; Jackson r. Ligon, 3 Leigh 
161. But see Brashier v. Gratz, 6 Wheaton 528; Bank of Columbia v. 
Hagner, 1 Pet. 465 ; Hepburn r. Auld, 5 Cranch 262 ; where in the Supreme 
Court of the United States, it was held, that time is not of the essence of 
a contract of sale ; and a failure on the part of vendor or purchaser on a 
stipulated day, does not of itself deprive him of the right to a specific 
performance when he is able to comply with his part of the agreement. 
Though in Goldsmith v. Guild, 10 Allen 239, the Court seemed to think 
that in this country time should be made the essence of the contract. See 
also, Macbryde v. Weekes, 22 Beav. 533. Mistake may sometimes prevent 
time from becoming of the essence when it otherwise would : Todd v. Taft, 
7 Allen 371. Very great delay, e. g., twenty one years, will not be excused : 
Greene. Covilland, 10 Cal. 317. See also, Francis r. Love,3 Jon. Eq. 
321 ; Stretch v. Schenck, 23 Ind. 77. Time may be always made material 
by either party if he choose. Either may demand performance on the 
stipulated day, and if the other do not then comply, may elect to rescind, 
which rescission will free him from the obligations of the contract in 
law and equity: Dominick p. Michael, 4 Sandf. S. C. 374; Patchin r. 
Lamborn, 31 Penn. St. 314; Ives v. Armstrong, 5 R. I. 567; Stow r. 
Russell, 36 111. 18; Heckard ». Sayre, 34 Id. 142; King r. Ruckman, 
20 N. J. Eq. 316. A reasonable time must, however, be given on a 
demand for performance : Parkin ». Thorold, 16 Jurist 959. Time also 



216 ADAMS's DOCTRINE OF EQUITY. 

r*ftc)'l *"^^ ^^^^ absence of any special matter, a wide 
liberty as to time is given to the vendor. He is 
permitted to make nut his title after the commencement 
of a suit, or at any time before the making of a final 
decree, subject, however, to a liability for costs, where, 
the title has not been shown before litigation began. (^j) 
And in some cases where a person, being owner of a 
portion only of the estate, or having but a limited inter- 
est therein, has bond fide contracted for a sale of the 
whole, he has been allowed time to obtain a title to the 
rest, or to extend his interest into a fee.(§') 

It has been sometimes attempted to extend the maxim, 
that "time is not of the essence of a contract," to cases 
where covenants have been contained in a lease that the 
lessor will renew, on request, within a specified time, 
and the lessee has failed in making the request. In cases 
of this kind, if the delay has been occasioned by unavoid- 
able accident or misfortune, which has disabled the lessee 
from applying at the stated time, it seems that he may 
have relief in equity. But unless there be some special 

[p) Townsend v. Champernowne, 3 Y. & C. 505 ; Scoones v. Morrell, 1 
Bea. 251, 

[q] Esdaile v. Stephenson, 2 Sug. V. & P. 30 ; Chamberlain v. Lee, 10 
Sim. 444 ; Salisbury v. Hatcher, 2 N. C. C. 54. 

becomes material, in connection with an important change in value, or 
circumstances: Southern Life Ins, &c., Co. v. Cole, 4 Florida 359. Or 
where there are not mutual remedies : Westerman v. Means, 12 Penn. St. 
97. So, an alteration in the situation of the parties will be taken into 
consideration : Waters v. Howard, 8 Gill 262. So, time is material on an 
agreement for the leasing of a house, or surety for the rent being pro- 
cured before a day fixed : Mitchell v. Wilson, 4 Edw. Ch. 697. So also, 
where by the original agreement a re-sale may be made if the vendor does 
not comply within a fixed period : Bodine w. Glading, 21 Penn. St. 50 ; 
Magoffin V. Holt, 1 Duvall (Ky.) 95. But if time is to be considered of 
the essence of a contract, the point must be made promptly : Monro v. 
Taylor, 8 Hare 62 ; Price v. Griffith, 1 De G., M. & G. 80. 



OF SPECIFIC PERFORMANCE. 217 

circumstances of excuse, a specific performance will not 
be decreed ; for the contract is, that the question of 
renewal or non-renewal shall be determined at the time 
appointed, and if the lessee were relievable, notwith- 
standing the delay, the effect would be to bind the lessor, 
and to leave himself unbound, (r) 

The third equity is that of allowing a conveyance with 
compensation for defects where a contract has been made 
for sale of an estate, which cannot be literally performed 
in toto, whether by reason of an unexpected failure in the 
title to part, of inaccuracy in the terms of description or 
of diminution in value by liability to a charge. It is not 
unusual to provide against these contingencies by a 
'^'condition that misdescriptions and errors shall r^QA-i 
not vitiate the sale, but that a compensation shall 
be given for the difference in value. But, unless there be 
such a condition, the contract cannot be partially enforced 
at law ; for a Court of law has no adequate machinery by 
which it may investigate the several points of variance, 
and determine how far they affect the essence of the con- 
tract, and how far they may be remedied by compensation. 
The vendor, therefore, cannot at law recover part of the 
purchase-money, if unable to convey the entire property, 
nor can the purchaser insist on paying a part only in respect 
of a partial failure in the i?ale.(*) In equity, on the 
other hand, there is no difficulty in making the requisite 
investigation; and therefore, on a bill for specific perform- 
ance, inquiry will be made whether the property can be 
either literally or substantially transferred. If a sub- 
stantial transfer can be made, it has been considered 

(r) Bayley v. Corporation of Leominster, 3 B. C. C. 529 ; City of London 
t'. Mitford, 14 Ves. 41 ; Harries i*. Bryant, 4 Russ. 89. 
(a) Johnson t". Johnson, 3 £. & P. 1G2. 



218 ADAMS's DOCTRINE OF EQUITY. 

against conscience to take advantage of small circum- 
stances of variation.^ 

In such a case, therefore, where the mistake made has 
been bond fide, and not material to the purchaser's enjoy- 
ment, the vendor may insist on performance with compen- 
sation.^ But it must be clear that the defect is not 
substantial, for a purchaser cannot be required against his 
will to pay for anything but what he has bought. He is 
not, for example, compellable to accept a lease instead of 



^ But where there is a great deficiency in the quantity of land the Court 
will not, in the absence of fraud, compel the vendor to complete the sale, 
making a deduction in the price for the deficiency : Rugge v. Ellis, 1 Dessaus. 
160. A deficiency of 171 acres out of 662 is not such a deterioration as 
will entitle the purchaser to have a contract rescinded, notice being given 
at the sale that a claim existed, and that if it succeeded a proportional de- 
duction would be made : Wainwright v. Read, 1 Dessaus. 573. See also 
Cordingley v. Cheesebrough, 3 GifF. 496. 

^ Hepburn v. Auld, 5 Cranch 26"2; Evans v. Kingsberry, 2 Rand. 120; 
Rankin v. Maxwell, 2 A. K. Marsh. 488 ; King v. Bardeau, 6 John. Ch. 
38 ; Wiswall v. McGowan, 1 Hofi". Ch. 125 ; Harbers v. Gadsden, 6 Rich. 
Eq. 284. Damages may in some cases also be decreed : Wiswall v. Mc- 
Gowan, ubi supra ; Slaughter v. Tindle, 1 Lit. 358 ; Fisher v. Kay, 2 Bibb 
434; Wright w. Young, 6 Wis. 127. And the rule of compensation on a 
bill for a specific performance, where a conveyance cannot be enforced, is 
the value of the land at the time the contract should have been performed : 
Dustin V. Newcome/, 8 Ham. 49. See, on this subject, note to Seton v. 
Slade, 2 Lead. Cas. Eq., p. ii. 33. Compensation in money, however, is not 
always proper ; thus, on a bill for specific performance of an agreement for 
a partition of coal mines owned in common by complainant and defendant, 
and for an account of coal already taken out, it was held that the most 
equitable mode of partition was, that coal should be assigned to the com- 
plainant, in order to make up his full share, regard being had to quantity 
and quality, and to accessability and convenience in mining, with reference 
to all the parties interested, instead of decreeing the value in money of the 
coal taken out and sold : Young v. Frost, 1 Md. 377 ; King v. Ruckman, 
20 N. J. Eq. 316. See also Coleman's Appeal, 62 Penn. St. 252. 

In Pennsylvania it is competent for a jury, on principles of equity, to 
find conditional damages, to be released on specific performance of a con- 
tract: Decamp v. Feay, 5 S. & R. 322; Hauberger v. Root, 5 Penn. St. 112. 



OF SPECIFIC PERFORMANCE. 219 

an underlease ; a copyhold instead of a freehold ; a life 
estate instead of a fee; an estate of reversion instead of 
one in possession; nor to take a part only of the estate 
contracted for, whether the other part is a large portion 
of the entire subject-matter, or is in its nature material to 
the enjoyment of the rest.(/) 

In favor of the purchaser the equity is of wider ap- 
plication, and the rule is that, although he cannot have 
a partial interest forced upon him, yet if he entered into 
the contract *in ignorance of the vendor's inca- rHcn-i-i 
pacity to give him the whole and chooses after- 
wards to take as much as he can get, he has generally, 
though not universally, a right to insist on that, with 
compensation for the defect, (m)^ 

In both cases alike, whether the claim be made by the 
vendor or the purchaser, the defect must be one admitting 

{t\ Stewart v. Alliston. 1 Meriv. 26; Knatchbull v. Grueber, 1 Mad. 153; 
1 Sug. Y. & P. c. vii : [Tiernan v. Roland, 15 Penn. St. 429.] 

(m) Thomas r. Bering, 1 K. 729 ; Wheatley v. Slade. 4 Sim. 126; Graham 
V. Oliver, 3 Bea. 124 ; Nelthorpe v. Holgate, 1 Coll. -03. 

^ Waters v. Travis, 9 Johns. 464 ; Erwin v. Myers, 46 Penn. St. 96— 
107 ; Collins r. Smith, 1 Head 251. Where a purchaser of land, who, on 
faith of a parol contract, has entered into possession and has made valuable 
improvements, but, on bill filed, fails to make out such a case as would en- 
title him to relief, the bill may be retained for the purpose of allowing him 
compensation, if he have not a full and adequate remedy at law : Aday v. 
Echols, 18 Ala. 353-, Rockwell r. Lawrence, 2 Halst. Ch. 190. In such 
case the land should be charged as against the vendor and his representa- 
tives for the amount of compensation found to be due, unless there be some 
circumstances which would make this improper. The insolvency of the 
vendor's estate, he being dead, is not a sufficient reason for refusing so to 
charge it: Aday v. Echols, ut supra. On the death of a vendor, and bill 
for specific performance by vendee, the dower right of the widow is to be 
compensated for, not by the deduction of a gross sum on its estimated 
value, but one-third of the purchase-money is to be retained till the death 
of the dowress, without interest, secured by a lien on the land : Springle 
V. Shields, 17 Ala. 295. 



220 ADAMS's DOCTRINE OF EQUITY. 

of compensation, and not a mere matter of arbitrary 
damages. (2;) And the compensation given must be really 
compensation for a present loss, and not indemnity against 
a future risk. For the offer to give such indemnity is in 
truth merely an off^r of a defective title, with pecuniary 
compensation in the event of its failure. In some cases 
where an estate has been liable to a contingent charge, a 
purchaser has been compelled to accept the title with a 
security protecting him against the charge.^ But it has 
been doubted whether the doctrine of these cases is sound, 
and whether in the absence of an express contract, the 
Court ought to compel either a vendor to give or a pur- 
chaser to accept an indemnity. (?^)^ 

A corresponding relief to that by specific performance 
is given, even in the absence of a contract, in the case of 
title deeds or specific chattels of peculiar value detained 
from the legitimate owner, by directing them to be de- 
livered up or secured.^ 

The remedies at law for such unlawful detainer are by 

(«) White ». Cuddon, 8 CI. & F. 766, 792 ; Lord Brooke v. Rounthwaite, 
5 Hare 298. 

{w) Fildes V. Hooker, 3 Mad. 193 ; Aylett v. Ashton, 1 M. & C. 105, 114 
2 Surg. V. & P. c. X, 8. 2. 

* See TIernan ». Roland, 15 Penn. St. 441. 

' A Court of Chancery will notxiecree compensation as a distinct head 
of equitable relief; but when the jurisdiction of the Court has once 
attached by reason of mistake, part-performance, or other equitable ground 
of relief, and the vendor has rendered specific performance impossible, 
compensation will be decreed. See Denton v. Stewart, I Cox Ch. 258 ; 
Andrews v. Brown, 3 Cush. 134 ; Harrison v. Deramus, 33 Ala. 463 ; Bell 
V. Thompson, 34 Id. 633 ; Lee v. Howe, 27 Missouri 521 ; Smith v. Fly, 24 
Tex. 345 ; Phillips v. Thompson, 1 John. Ch. 149 ; Parkhurst v. Van Cort- 
land, Id. 273;'Scott V. Bilgerry, 40 Miss 119. See, however, Sainsbury v. 
Jones, 5 Myl. & Cr. 1 ; Todd v. Gee, 17 Ves. 278. 

See McGowin v. Remington, 12 Penn. St. 56 ; Pooley v. Budd, 14 
Beav. 34. 



OF ELECTION. 221 

an action of trespass for the unlawful taking, by trover 
for the unlawful conversion to the defendant's use, or by 
detinue for the actual detainer. In the two former actions, 
the judgment at law is for damages only ; in the third the 
judgment is for restoration of the (teed or chattel, if it 
can be found, or for the value, if it has been destroyed or 
eloigned. The remedy, however, though in terms specific, 
*is inferior to that by suit in equity; for there is r^qn-i 
no power to prevent destruction or defacement 
whilst the suit is pending. The defects thus existing in 
the remedy at law originate a jurisdiction in the Court of 
Chancery, and suits have accordingly been entertained for 
recovery of an ancient silver altar, claimed by the plaintiff 
as treasure-trove; for a cabinet of family jewels; for a 
picture or statue by a particular artist; and for other 
objects of a like kind.(:r) 

The two next subjects which fall under our notice are 
tho^e of Election and of Meritorious or Imperfect Con- 
sideration; and both these subjects are closely connected 
with the principle of enforcing those contracts, and those 
only, which are based on valuable consideration. 

We will first consider the equity of election.^ It has 

(x) Mitf. 117 ; Duke of Somerset v. Cookson, 3 P. W. 389 ; Earl of Mac- 
clesfield r. Davis, 3 Yes. & B. 16 •, Wood v. Rowcliffe, 3 Hare 304. 

* See an elaborate discussion of the Doctrine of Election in Spence on the 
Equitable Jurisdiction of the Court of Chancery, Vol. II, page 585, et seq., 
Story's Equity Jurisprudence, ? 1076, et seq. ; Gretton v. Haward, 1 
Swanst., cited post, and in the notes to Streatfield v. Streatfield, 1 Lead. 
Cas. Eq. 273. See, also, Hall r. Hall, 1 Bland 130, 134; McGinnis et al. 
V. McGinnis, 1 Kelly 496 : Clay and Craig v. Hart, 7 Dana 1 ; Field r. 
Eaton, 1 Dev. Ex. 283, 286 ; Brown ». Ricketts, 3 John. Ch. 553 ; Allen r. 
Getz, 2 Penna. R. 311 ; Marriott v. Sam Badger, 5 Md. 306 t McElfresh v. 
Schley, 2 Gill 1S2 : Cauffman v. CauflFman, 17 S. & R. 16 ; Upshaw v. Up- 
shaw and Others, 2 Hen. & Munf. 381 ; Pemberton v. Pemberton, 29 Mo. 
408 ; A'an Duyne v. Van Duyne, 1 McCart. 49 ; Lewis r. Lewis, 33 Penn. 



222 ADAMS's DOCTRINE OF EQUITY. 

been stated as a general principle that the equity to en- 
force contracts made for value, is extended by parity of 
reasoning to cases where a benefit has been conferred as 
the consideration for an act, and knowingly accepted, 
although the part^ so accepting it may hot be bound by 
an actual contract, or by a condition of performance an- 
nexed to the gift.(^) The equity of election is analo- 
gous to this. It applies not to cases of contract or of 
conditional gifts, but to those on which the donor of an 
interest by will has tacitly annexed a disposition to his 
bounty, which can only be effected by the donee's assent, 
e. g., where a testator leaves a portion of his property to 
A., and by the same will disposes of property belonging 
to A. In this case there is no contract by A. to relin- 
quish his own property ; nor is* there any condition an- 
nexed to the testator's gift, as a term of its acceptance, 
which requires him to do so. But the double disposition 
made by the testator implies that he did not intend that 
A. should have both the interests ; and he must therefore 
r*QQ"| elect between the two, *and either relinquish his 
own property or compensate the disappointed 
donee out of the property bequeathed. 

From the definition given of this equity, it is obvious 
that two things are essential to originate it, viz., 1. That 
the testator shall give property of his own; and 2. That 
he shall profess to give also the property of his donee. 

1. The testator must give property of his own; for 
otherwise, if the recipient refuse to give effect to the will, 
there is nothing on which the right to compensation can 

{y) Edwards v. Grand Junction Railway, 1 M. & C. 650 ; Green v. Green, 
19 Ves. 665 ; 2 Meriv. 86 ; Gretton v. Haward, 1 Swanst, 409, 427. 

St. 66 ; Gable v. Daub, 40 Id. 217 ; Reaves v. Garrett, 34 Ala. 558 ; Brown 
V. Brown, L. R. 2 Eq. 481 ; Brown v. Pitney, 39 111. 468. 



OF ELECTION. 223 

attach. In the case, therefore, of an appointment under 
a power which is void as to some appointees, but good as 
to the rest, the doctrine does not apply ; but the legitimate 
appointees may claim their appointed shares without 
giving effect to the invalid appointment. If, on the other 
hand, they have independent legacies out of the testator's 
property, they must elect between those legacies and their 
claim to the fund of which the appointment fails. (^)^ 

2. The testator must profess to dispose of property be- 
longing to his donee.- There will therefore be no equity 
for election, if the gift of such property be not judicially 
cognisable ; as, for example, where, previously to the late 
Wills Act, a will was made by an infant, or without proper 
attestation, professing to devise real estate, the heir-at-law 
might take a personal legacy under such will, and yet 
dispute the validity of the devise ; for such a will was 
judicially read, as if the devise were blotted out, and an 
intention to give the realty did not appear, (a)^ So again, 

(2) Bristowe v. Warde, 2 Ves. Jr. 336 ; Kater r. Roget, 4 Y. & C. 18. 
(a) Brodie v. Barry, 2 V. & B. 127; Sheddon v. Goodrich, 8 Ves. 481. 

* Fowler's Trusts, 27 Beav. 362. 

^ Melick r. Darling, 11 Ohio 351. It is not material, however, whether 
the testator knew that the property he has attempted to dispose of belonged 
to another, or whether he mistakingly supposed it to be his own : Stump v. 
Findlay, 2 Rawle 168. 

' Snelgrove v. Snelgrove, 4 Dessaus. 274 ; Melchor r. Burger, 1 Dev. & 
Bat. Eq. 634. So where a will is made in one state, professing to pass both 
real and personal estate, but is not executed so as to pass real estate in 
another state, the heir is not put to an election in the latter: Maxwell r. 
Maxwell, 2 De G., M. & G. 705 ; Jones r. Jones, 8 Gill 197. See also 
Kearney r. Macomb, 1 Green (N. J.) 189. In Maxwell v. Maxwell, at 
supra., the principle was stated by L. J. Knight Bruce, to be *' that the 
generality merely, or the universality merely, of the gift of the property, 
is not suflBcient to demonstrate or create a ground of inference that the 
giver meant it to extend to property incapable, though bis own, of passing 
by the particular act." 

But a case for election may arise, even where a will is incapable of 



224 ADAMS's DOCTRINE OF EQUITY. 

where a feme coverte has made a will in exercise of a tes- 
tator's power of appointment, and assumed to dispose of 
other property also, the gift of such other property is 
judicially non-existent; and her husband may take a 
benefit under the -appointment, without relinquishing his 
marital right. (^) The same principle applies where a 
testator, having a limited power of appointment, exer- 
r*Q4-1 cises it in favor of the *legal object, and then at- 
tempts to cut down the gift in violation of the 
power. In this case, the original legal disposition is not 
affected by the subsequent illegal one ; but the will is 
read as if it stopped at the original gift. A claimant, 
therefore, under it, though in one sense claiming against 
the illegal gift, is in law claiming in conformity with the 
will, and need not elect in respect of other interests 
w^hich he may take under it.(c)^ 

If, on the other hand, the devise is in itself a valid de- 
vise, but is ineffectual to pass the particular property, the 
doctrine of election is not excluded. Such, for example, 
was the case where a will of earlier date than 1 Vict. c. 
26, professed to extend to after-acquired lands. The 
lands did not pass by the will ; but if the heir claimed an 
interest under it, he was put to his election, (t?)^ 

[h) Rich V. Cockell, 9 Ves. 369. 

(c) Carver v. Bowles, 2 R. & M. 301 ; Kater v. Roget, 4 You. & Col. 18 ; 
[Blacket v. Lamb, 14 Beav. 482.] 

[d) Churchman v. Ireland, 4 Sim. 520 ; 1 Russ. & My. 250 ; Thelluson v. 
Woodward, 13 Ves. 209. 

passing realty, as where the legacy and devise cannot be separated. 
Thus where, in such case, the real estate is devised away, but charged 
with a legacy for the heir-at-law, the latter must elect: Nutt v, Nutt, 1 
Freem. Ch. 128. 

^ So where there is a recital of an intention, under a belief on the part 
of the testator that is erroneous, there is not a case of election: Box v. 
Barrett, L. R. 3 Eq. 244. 

2 s. p. McElfresh v. Schley, 2 Gill 182 ; contra City of Philadelphia v. 



OF ELECTION, 225 

/ 

In accordance with the same principle, there is no equity 
for election, if the testator has himself a partial interest, 
which might satisfy the terms of his gift ;^ e. g., where a 
testator gives a legacy to his widow entitled to dower, 
and devises his real estate to another person, under cir- 
cumstances to which the Dower Act does not apply. If 
such devise be expressly made free of dower, or if its 
nature be inconsistent with the contrary hypothesis, the 
widow is bound to elect. But it is otherwise, if the de- 
vise be in general terms. For it may be intended as a 
gift of what was strictly his own, viz., the estate subject 
to dower; and it will not be needlessly presumed that he 
intended to dispose of another's property, (e)^ For the 

(e) Birmingham v. Kirwan, 2 Sch. & Lef. 444; Holdich v. Holdich, 2 
N. C. C. 18; Ellis V. Lewis, 3 Hare 310; 1 Jarm. on Dev. 366, 408; 
Lowes V. Lowes, 5 Hare 501. 

Davis, 1 Whart. 490, though the point was not directly decided. Where, 
however, it is not clear on the face of the will that the testator intended to 
refer to after-acquired lands, it is not a case for election. See 1 Lead. 
Cas. Eq. 407, American note; Hall ». Hall, 2 McCord Ch. 269; City of 
Philadelphia v. Davis, ut sup. See Schroder v. Schroder, 18 Jur. 987. 

^ It must be clear, beyond reasonable doubt, that the testator designedly 
assumed to dispose of the property of the beneficiary, and did not intend 
to dispose of any expectant or other interest of his own in the property: 
Havens v. Sackett, 15 N. Y. 365 ; Miller v. Thurgood, 33 Beav. 499. A 
devise of an estate does not impart a devise free of encumbrances, so as to 
put the encumbrancers to their election w Stephens v. Stephens, 3 Drew. 
697 ; 1 De G, & J. 62. The rule as to election is applicable only as be- 
tween a gift under a will and a claim dehors the will and adverse to it, and 
not as between one clause in a will and another clause in the same will : 
"VVollaston ». King, L. R. 8 Eq. 165. 

^ See, as to the application of the doctrine of election to the case of a de- 
vise or bequest made to the widow of a testator, when the estate of which 
she is dowable, is disposed to orthers : Adsit v. Adsit, 2 Johns. Ch. 448, 
and Gordon, Adm'r., v. Stevens, 2 Hill Ch. 46; Brown v. Caldwell, 1 Speer's 
Eq. 322; Whilden t\ Whilden, Riley's Ch. 205; Timberlake r. Parrish's 
Ex'r., 5 Dana 345 ; Kinsey v. Woodward, 3 Harring. 459 ; Smith r. Kniskern, 
4 John. Ch. 9 ; Wood v. Wood, 5 Paige 597 ; Havens v. Havens et al., 1 
15 



226 ADAMS's DOCTRINE OF EQUITY. 

same reason, it has been decided, that the doctrine of 
election does not apply to creditors, but that they may 
take the benefit of devise of lands for payment of debts, 
and at the same time enforce their legal claims against 
P^qr-i personal estate, to the exclusion of ^specific lega- 
tees. For it will be presumed that the testator 
bequeathed no more than what really belonged to him, and 
that the legatees were to take the personal estate subject 
to its ordinary liabilities. (/)^ 

In like manner, no case of election will arise, if the tes- 
tator shows by the terms of his gift, that he is doubtful 
whether the property in fact belongs to him, and that 
he only intends to dispose of it, if it is his own; e. g., 
if he directs a different disposition, in the event of its 
proving that he has no power to give, or if he expressly 
makes the deposition, in case he has power, or so far as 
he lawfully can or may.(^) 

[f) Kidney v. Coussmaker, 12 Ves. 136. 

( g) Bor. V. Bor., 3 B. P. C. by Toml. 167 ; Church v. Kemble, 5 Sim. 525. 

Sandf. Ch. 325 ; Fuller v. Yates, 8 Paige 325 ; Sandford v. Jackson, 10 Id. 
266 ; Webb v. Evans, 1 Binney 565: Kennedy v. Nedrow, 1 Dal. 415 ; Snel- 
grove V. Snelgrove, 4 Dessaus. 274 ; Ambler v. Norton, 4 H. & M. 23 
Tobias v. Ketchum, 36 Barb. 304 ; Bending v. Bending, 3 K. & J. 257 
Bradford v. Kents, 43 Penn. St. 474; Pollard v. Pollard, 1 Allen 490 
Dodge V. Dodge, 31 Barb. 413 ; Pemberton v. Pemberton, 29 Missouri 408 
Sandoe's Appeal, 65 Penn, St. 314 ; Carder v. Commissioners of Fayette 
Co., 16 Ohio 353. This subject has been very fully and ably discussed in 
the notes to Streatfield v. Streatfield, 1 Lead. Cas. Eq. 225. 

^ That the doctrine of election does not apply to creditors, has been de- 
nied as a general rule in Pennsylvania: Irwin v. Tabb, 17 S. & R. 419 5 
Adlum V. Yard, 1 Rawle 163 ; and it has been frequently held there that 
creditors taking a benefit under an assignment, fraudulent in law, elect not 
to disaffirm it. See Lanah«.n p. Latrobe, 7 Md. 268. It is otherwise, 
however, as to assignments fraudulent in fact : Hays v. Heidelberg, 9 Penn. 
St. 207 ; and an inclination was there manifested not to carry the doctrine 
of Adlum V Yard any further. The actual point decided in Kidney v. 
Coussmaker, as stated in the text, however, was never questioned in any 
of the cases. See also Waters v. Howard, 1 Md. Ch. 112. 



OF ELECTION. 227 

It was at one period doubted whether evidence dehm's 
the will itself was not admissible in cases of election in 
contravention of the ordinary rule of law, for the purpose 
of showing that a testator in making a bequest of his 
estate, intended to include property which was not strictly 
his own, although in some sense subject to his dominion; 
e. g., lands of which he was tenant in tail, or leaseholds 
and mortgages belonging to his wife. The weight of au- 
thority, however, seems to be against its admissibility, 
and in favor of abiding by the ordinary rule.(^)^ 

If both the requisites concur, which have been here 
explained; if the testator has conferred a benefit out of 
his own propert}^, and has professed to dispose of the 
property of the donee, the equity of election arises, and 
the donee must choose between the conflicting interests. 

The election may be either express or implied : and if 
not made voluntarily, may be compelled by decree. But 
the electing party is entitled to know the value of both 
interests; and the mere fact that the benefit has been 
conferred, or even that it has been accepted in ignorance 
of the *conveyance, does not bind his right.^ If, r*qp-i 
therefore, a bill be filed against him, he may insist 

(A) Druce v. Dennison, 6 Ves. 385 ; Dummer v. Pitcher, 2 M. & K. 262 ; 
Clementson v. Gandy, 1 K. 309 ; 1 Jarm. on Wills 391 5 Wigram on Wills 39. 

^ The intention to raise an election must clearly appear on the face of 
the will : Jones r. Jones, 8 Gill 197 ; McElfresh v. Schley, 2 Id. 182 ; Waters 
V. Howard, 1 Md. Ch. 112; Wilson v. Amy, 1 Dev. & Batt. £q. 376. 
It cannot be raised by evidence dehors : City of Phila. v. Davis, 1 Whart. 
490 ; Timberlake v. Parish, 5 Dana 345 ; Waters c. Howard, 1 Md. Ch. 
112. Though there will be no objection to such evidence so far as it goes 
only to show the state and circumstances of the property: Waters c. 
Howard, ut sup. 

* Snelgrove v. Snelgrove, 4 Dessaus. 274 ; Adsit v. Adsit, 2 John. Ch. 
4^8 ; Pinckney f. Pinckney, 2 Rich. Eq. 219 ; Upshaw r. Upshaw, 2 lien. 
& Munf. 381 ; Duncan v. Duncan, 2 Yeates 302 ; Sopwith c. Maughan, 30 



228 ADAMS's DOCTRINE OF EQUITY. 

on the values being ascertained before a decree to elect is 
made; or he may himself as plaintiff sustain a bill to 
have the accounts taken and the property ascertained. (/) 
If he be incompetent to make his election, as in the case 
of infancy or coverture, the Court will do so in his stead, 
and will refer it to the Master to inquire what election 
should be made.(^)^ 

The principle which gives the right of choice to the 
donee necessarily leads to the result that his election, when 
made, binds himself alone, and does not affect the inter- 
ests of donees in remainder. A contrary election by 
them may possibly create some inconvenience ; but this 

(j ) Pusey V. Desbouvre, 3 P. W. 315 ; Dillon v. Parker, 1 Swans. 359, 
381. 
[k) Gretton v. Haward, 1 Swanst. 413, n. 

Beav. 235 ; Dewar v. Maitland, L. R. 2 Eq. 834 ; Douglas v. Webster, 12 
lb. 617. An election, however, made in ignorance of the law, b«t with 
full knowledge of all material facts, as in the case of a widow taking 
under her husband's will to the exclusion of dower, is binding, unless there 
were fraud or imposition : Light v. Light, 21 Penn. St. 407 ; Bradfords v. 
Kents, 43 Id. 475. An election once made, though bj' matter in pais, is 
binding: Upshaw r. Upshaw, 2 Hen. & Munf. 381; Caston ». Caston, 2 
Rich. Eq. 1 ; Buist v. Dawes, 3 Id. 281. As to what circumstances will 
amount to proof of such election where the party to elect has remained in 
possession of both estate : spe Padbury v. Clark, 2 M. & G. 298 ; 2 H. 
& Twells 341, s. c. See the result of the authorities in this point stated 
by the Master of the Rolls in Miller v. Thurgood, 33 Beav. 496 ; also 
Fitzsimons «. Fitzsimons, 28 Id. 417; Honywood r. Forster, 30 Id, 14; 
Howells V. Jenkins, 2 John. & II. 706 ; 1 De G., J. & Sm. 617 ; Marriott v. 
Sam Badger, 5 Md. 306; Spread v. Morgan, 11 H. L. Cas. 588; Whit- 
ridge V. Pajkhurst, 20 Md. 85. Where both rights are legal, an election 
operates as an estoppel at law : Buist v. Dawes, 3 Rich. Eq. 281. When 
a married woman can elect : see Barrow v. Barrow, 4 K. & J. 409, 

1 See Robertson v. Stevens, 1 Ired. Eq. 247 ; Sledds v. Carey, 11 B. 
Monr. 181 ; Addison v. Bowie, 2 Bland 606 ; Kavanaugh v. Thompson, 16 
Ala. 817 ; McQueen v. McQueen, 2 Jones Eq. 16. An election by a feme 
covert may be presumed after a great lapse of time : Tiernan v. Roland, 
15 Penn. St. 429. 



OF ELECTION. 229 

is no ground for allowing a preceding taker to bind their 
rights, or for depriving them of an independent election 
as their respective interests accrue. Nor will such do- 
nees be affected in their choice by acquiring derivative 
interests under the first elector; for such derivative in- 
terests are incidental to his estate, and not to their own. 
If, for instance, a married woman elect to take an estate 
of inheritance against a will, her husband may have his 
curtesy of that estate, and nevertheless claim a legacy 
under the will.(/) 

The effect of election is not to divest the property out 
of the donee, but to bind him to deal with it as the Court 
shall direct. 

If he elects to relinquish his own property, conforming 
throughout to the testator's disposition, he is said to take 
under the will, and must convey accordingly. If he 
elects to retain it, he is said to take against the will 
and must convey the estate devised to him to the disap- 
pointed donee, or must compensate him thereout for his 
disappointment. With respect, however, to this last 
point, some doubt exists. And it appears to be uncertain 
whether the consequence of an election to take against 
the will is confined to a liability *to compensate, r^qy-] 
or is a forfeiture of the property devised.^ In the 

(Z) Cavan v. Pulteney, 2 Ves. Jr. 544; Ward v. Baugh, 4 Ves. 623- 

' This doubt seems now to be settled in England in favor of compensa- 
tion, and against a forfeiture : Spread v. Morgan, 11 H. L. Cas. 688. In 
this country, it has frequently been held, that it is compensation and not 
forfeiture, upon which equity proceeds in cases of this kind : Cauffman v. 
Cauffman, 17 S. & R. 16 5 City of Philadelphia v. Davis, 1 Whart 490 ; 
Stump V. Findlay, 2 Rawle 168: Key v. Griffin, 1 Rich. Eq. 67 ; Marriott 
r. Sam Badger, 5 Md. 306 ; and the general rule was admitted so to be, in 
Lewis V. Lewis, 13 Penn. St. 82. But in this last case, it was held, that 
where the estate retained, is greater in value than that devised, compen- 



230 ADAMs's DOCTRINE OF EQUITY. 

case of a contract for valuable consideration, the result 
would be clearly forfeiture ; for if the party claiming will 
not give the price, he must relinquish the benefit for which 
it was to be paid. But in the case of election it seems to 
be otherwise. For the equity does not originate in a gift 
on consideration, but in the intention presumable from 
the double gift, that the disappointed donee shall have 
some benefit. This intention is at once effected if com- 
pensation be the result ; but will be manifestly defeated 
by forfeiture, unless the Court can imply a gift to the dis- 
appointed donee, for which the testator has given no au- 
thority, or can decree the heir taking as on an intestacy, 
to be a constnictive trustee for him. It seems, however, 
difficult to conceive how the heir can be thus affected with 
a trust on the election of a devisee, which would not have 
attached if there had been an express condition of forfeit- 
ure in the will, or if the devisee instead of electing had 
disclaimed the interest devised. (?w) 

The next equity which requires notice is that of meri- 
torious, or imperfect consideration. 

The doctrine of meritorious consideration originates in 
the distinction between the three classes of consideration 
on which promises may be based ; viz., valuable consider- 

(m) 2 Sug. on Powers 145; 1 Roper, Hus. & Wife, by Jacob, 156 n. ; 
Gretton r. Haward, 1 Sw. 433 n»; 2 Roper on Legacies 571-8; Kerr. 
Wauchope, 1 Bligh 1. 

sation wonld be useless, and therefore a decree shoivid be made in favor of 
the disappointed devisee directly, on the ground of forfeiture ; and that, 
as a consequence, under the peculiar system of Pennsylvania, he could re- 
cover in ejectment- In Marriott v. Sam Badger, 5 Md. 306, where a slave 
belonging to a legatee was emanciated by will, it was held that no case of 
election arose, because, the principle being compensation, if the slave re- 
ceived the legacy as compensation, his master would be immediately en- 
titled to it again, Jure domini. 



OF IMPERFECT CONSIDERATION. 231 

ation, tlie performance of a moral duty, and mere voluntary 
bounty. The first of these classes alone entitles the 
promisee to enforce his claim against an unwilling pro- 
misor ; the third is for all legal purposes a mere nullity 
until actual performance of the promise. 

The second, or intermediate class, is termed meritorious, 
and is confined to the three duties of charity,^ of payment 
of creditors, and of maintaining a wife and children; and 
under this last head are included provisions made for per- 
sons, not being children of the party promising, but in 
*relation to whom he has manifested an intention rH:Qo-i 
to stand in loco parentis, in reference to the parental 
duty of making provision for a child, (w) 

Considerations of this imperfect class are not distin- 
guished at law^ from mere voluntary bounty, but are to a 
modified extent recognised in equity. And the doctrine 
with respect to them is, that although a promise made 
without a valuable consideration cannot be enforced against 
the promisor, or against any one in whose favor he has 
altered his intention, yet if an intended gift on meritorious 
consideration be imperfectly executed, and if the intention 
remains unaltered at the death of the donor, there is an 
equity to enforce it in favor of his intention, against per- 
sons claiming by operation of law without an equally 
meritorious claim. 

The principal applications of this equity are in supply- 
ing surrenders of copyholds against the heir, and in sup- 
porting defective executions of powers, when the defect 
is formal, against the remaindermen. 

(n) Perry v. Whitehead, 6 Ves. 544; Ex parte Pye, 18 Id. 140; Powys 
r. Mansfield, 3 M. & C. 359 ; Pym v. Lockyer, 5 Id. 29. 

' Equity will relieve against the defective execution of a power in favor 
of a charity : Innes v. Sayer, 3 Macn. & Gord. 600 : affirming s. c. 7 Hare 
377. 



232 ADAM.S*S DOCTRINE OF EQUITY. 

The equity for supplying surrenders of copyholds origi- 
nates in the doctrine, that a copyhold does not pass by 
grant or devise, but by a surrender into the hands of the 
lord to the use of the grantee, or of the will. In the one 
case, the grantee is- entitled to immediate admission ; in 
the other, the person designated in the will is entitled to 
admission on the testator's death. If a grant or devise 
were made without a previous surrender, it was formerly 
inoperative at law ; but if it were made for meritorious 
consideration, the surrender might be supplied in equity. 
The jurisdiction thus to supply a surrender existed whether 
the gift were by deed or will,(o) but it was ordinarily 
called into exercise in the case of wills ; and it is now 
rendered of little practical importance by the enactment 
that all real estate may be devised by will, and that copy- 
p^qq-i holds *shall be included under that description, 
notwithstanding that the testator may not have 
surrendered them to the use of his will, nor have even 
been himself admitted to them.(jo) 

The exercise, therefore, of the equity in question is now 
principally confined to defective executions of powers.^ 

(o) Rodgers v. Marshall, 17 Ves. 294. {p) 1 Vict. c. 26, s. 3, 

^ Equity relieves against the defective execution of a power, in favor of 
purchasers, creditors, children, or a wife : Schenck v. Ellingwood, 3 Edw. 
Ch. 175 ; Porter v. Turner, 3 S. & R. 108; Dennison v. Goehring, 7 Penn. 
St. 175 ; Bradish v. Gibbs, 3 John. Ch. 523. Upon a somewhat analogous 
principle, it is held, that where a person has a general power of appoint- 
ment over property, which he actually exercises, either by deed or will, 
he thereby subjects the property to the claims of his creditors in prefer- 
ence to the claims of his appointee. But a Court of equity will not inter- 
fere, unless the party upon whom the power has been conferred, or to 
whom it is tendered, has done some act indicating an intention to execute 
it ; and the power of appointment must be a general power. A power of 
appointment is general, or not, within the meaning of the rule, according 
to the person or uses to which the property may be appointed under it, 



OF IMPERFECT CONSIDERATION. 233 

And the powers to which it applies are those which have 
been created by way of use, as distinct from bare authori- 
ties conferred by law. Acts done under authorities of 
this latter kind, as, for example, leases or conveyances by 
a tenant in tail, are only binding when regular and com- 
plete. The principle of the distinction appears to be that 
powers limited by use -are mere reservations out of the 
original ownership, constituting the donee a quasi owner, 
and the remainderman a quasi heir; and consequently 
that, in conformity with this hypothesis, the donee's con- 
tracts for value ought to bind the remainderman, and his 
meritorious intention, if unaltered, ought to have the same 
effect. The soundness of this equity has been questioned 
by Sir William Grant, and its principle seems difficult to 
sustain. For the power given, though doubtless in some 
sense a modified ownership, does not confer an absolute 
right to dispose of the property, but a right to do so in a 
specific way. And the chance that the power may never 
be executed, or that it may not be executed in the man- 



and not according to the time when its exercise takes effect in possession, 
or the instrument by which its exercise is to be manifested. If a party 
may by will or deed dispose of property, to whom, and for such uses as he 
pleases, to take effect at his death, and may thus apply it to the payment 
of his debts, or direct any other disposition to be made of it, he has as 
great a power of disposal as he has of his own estate to take effect at the 
same time, and having undertaken to exercise the authority, it may be 
treated as a part of his estate upon his decease, so far as to require that 
that he should first provide for his debts out of it ; and if he fails so to do, 
equity may apply it as a part of his estate, so far as it is necessary for that 
purpose : Johnson v. Cushing, 15 N. H. 298 ; Fleming v. Buchanan, 3 De 
G., M. & G. 976 ; see 2 Sug. on Powers, 7th ed. 27. But it would appear 
in England to be the opinion that equity will not aid a defective execution 
in favor of a stranger, for the benefit of the creditors of the appointor : 2 
Sug. 102. This doctrine of treating a fund appointed to a volunteer, as 
assets for creditors, was strongly disapproved by Gibson, C. J., in Comm. 
v. Duffield, 12 Penn. St. 277. 



234 ADAMS'S DOCTRINE OF EQUITY. 

ner prescribed, is an advantage given to the remainderman. 
If, therefore, his interest is to be regarded, it is difficult to 
see why he should be bound by any other than the pre- 
scribed act ; for he is a stranger to any equity or consider- 
ation. If, on the other hand, his interest is subordinate to 
the donee of the power, the intention of such donee ought 
to be sustained, whatever be the consideration on which 
it rests. The objection, however, which is noticed in these 
remarks, appears not to be peculiar to the execution of 
powers, but to apply generally to the equity of meritorious 
r*l 001 consideration, and to the principle of enforcing *a 
gift on the ground of intention alone, as distinct 
from any binding contract, and yet inquiring into the con- 
sideration on which that intention was based. (§') 

Whatever opinion may be entertained as to the original 
soundness of the equity, there is no question that it is es- 
tablished by precedent; but it is confined to cases of 
execution formally defective, or of contract amounting to 
such defective execution. If there be no such execution 
or contract the Court cannot interpose ; ^ for, unless when 
the power is in the nature of a trust, the donee has his 
choice whether to execute it or not; and if he does not 
execute or attempt to execute, there is no equity to exe- 
cute for him. If the defect be not formal, but in the 
substance of the power, the execution cannot be aided 
in equity; for such aid would defeat the intention of the 
donor. A power, for example, which is given to be exe- 
cuted by deed, may be effectuated where the execution 

(?) Holmes v. Goghill, 7 Ves. 499 ; 12 Id. 206 ; 2 Sug. on Powers, c. 10. 

^ Lippincott v. Stokes, 2 Hals. Ch. 122, If the court is left in doubt 
whether an execution was at all intended, it will not interfere ; such an 
intention must clearly appear : Id. See, also, Drusadow v. Wilde, 63 
Penn, St, 170 ; Bingham's Appeal, 64 Id. 345. 



OF IMPERFECT CONSIDERATION. 235 

has been by will; for the mode of execution is imma- 
terial. But if given to be executed by will, its execution 
by deed is altogether invalid ; for it was meant to have 
continuance until the death of the donee, and the deed, if 
it avail at all, must avail to its destruction, (r) 

The rule that the intention must remain unaltered does 
not require any special notice. It might perhaps have 
been originally contended, that the very fact of the 
appointment being left imperfect was evidence that the 
intention had not continued. The doctrine, however, is 
clearly otherwise ; but if there be any subsequent act of 
the donor showing that his original intention is recalled, 
the equity is at an end ; for it is not one to enforce a con- 
tract against him, but to effectuate his intention in his 
own favor. (^) 

The only remaining requisite is, that the party against 
whom relief is asked must not have an equally merito^ 
rious claim. If, therefore, the heir-at-law or remainder- 
man be a *child unprovided for, it seems the r*toi-i 
better opinion that the equity will not be enforced ; 
and the same rule prevails where relief is sought against 
a grandchild, although a defective execution cannot be 
supplied in his favor.^ It is not, however, sufficient 
that the heir is disinherited ; for if he is provided for, 
it is immaterial from whom the provision moved.^ Nor 
will the Court inquire into the relative amount of the 
provisions made; for on that point the parent is the best 
judge. (0 

(r) ToUett ». Tollett, 2 P. W. 489 ; Reid ». Shergold, 10 Ves. 370. 
(») Finch r. Finch, 15 Ves. 51 ; Antrobus v. Smith, 12 Id. 39. 
it) Rodgers v. Marshall, 17 Ves. 294 ; Hills v. Downton, 5 Id. 557 ; 2 
Sug. on Powers, c. 10, and App. 24. 

1 See Porter v. Turner, 3 S. & R. 108. 

2 See Morse v. Martin, 34 Beav. 500. 



236 ADAMS'S DOCTRINE OF EQUITY. 

Another class of cases, to which the doctrine of meri- 
torious consideration applies, are those where a man, sub- 
ject to a moral duty, does an act which may reasonably 
have been meant in satisfaction of that duty; and is there- 
fore presumed to have so intended it. 

In accordance with this principle acts, which as be- 
tween strangers would bear one construction, may be 
construed differently where meritorious consideration 
exists; e. g., a purchase made by one person in the name 
of another, may be construed an advancement in favor of 
a child, instead of a resulting trust for the purchaser; a 
legacy may be construed a provision, instead of mere 
bounty, and may on that ground bear interest from the 
testator's death. And in like manner, if there be a prior 
legacy bequeathed or promise made to a child, a subse- 
quent gift or legacy ma}- be construed as a substituted 
portion, instead of being a cumulative benefit. 

With respect to purchases by one person in the name 
of another, it has been already stated to be a presump- 
tion of law that the purchase is intended for the benefit 
of the purchaser, and that the conveyance is taken on 
trust for him. If, however, the conveyance is taken in 
the name of a child, or of one towards whom the purchaser 
stands in loco parentis, a counter presumption arises. And 
the prima facie probability is, that the purchase was meant 
as a provision or advancement for the child } In either 

^ The general rule of equity is, that if a father makes a purchase in the 
name of the son, even though illegitimate, it will not be deemed a result- 
ing trust, but an advancement: Page v. Page, 8 N. H. 187. See, how- 
ever, Tucker v. Burrow, 2 Hem. & M, 515; and see, also, Williams v. 
Mears, 2 Disney (Ohio) 604. And a purchase in the name of a wife or 
child will be considered an advancement until the contrary is proved, and 
no trust will result to the husband or father. It seems to be doubtful 
whether the doctrine under consideration applies to purchases made by a 



OF IMPERFECT CONSIDERATION. 237 

case the *doctrine is one of presumption, not of the 

P1021 
construction of the conveyance itself. There is] ^ J 

therefore no rule of law which prohibits the use of parol 
evidence, either to counteract or to support the presump- 
tion.^ But the only difference is that, in the case of a 
stranger, the onus lies on those who allege that he was 
intended to take beneficially; in the case of a child, it lies 
on those who allege that he was to take as a trustee, (w) 
It may, for instance, be shown that the child was already 
fully provided for, which affords a presumption that no 
further advancement was intended. It may be shown 

(n) Hall V. Hill, 1 Conn. & L. 120. 

mother. It was held not to apply in Re De Visme, 2 De G., J. & Sm. 17; 
but Murphy v. Nathans, 46 Penn. St. 508, is the other way. See also 
Garrett v. Wilkinson, 2 De G. & Sm. 244 ; Loyd v. Read, 1 P. Wms. 607 ; 
Hill on Trustees 160, 4th Am. ed. ; Astreen v. Flanagan, 3 Edw. Ch. 279; 
Livingston v. Livingston, 2 John. Ch. 537 ; Sampson v. Sampson, 4 S. & R. 
329 : Taylor v. James, 4 Dessaus. 1 ; Partridge v. Havens, 10 Paige 618 ; 
KnouflFp. Thompson, 16 Penn St. 357 ; Dennison v. Goehring, 7 Id. 182 
n. ; Dudley v. Bosworth, 10 Humph. 12; Tremper v. Barton, 18 Ohio 418 ; 
Taylor v. Taylor, 4 Gilm. 303 ; Jackson v. Matsdorff, 11 John. 91 ; Creed 
V. Lancaster Bank, 1 Ohio St. 1 ; Smith v. Smith, 21 Ala. 76. Advance- 
ment is always a question of intention: Weaver's Appeal, 63 Penn. St. 
309 ; Dillman v: Cox, 23 Ind. 440. In Sterry v. Arden, 1 John. Ch. 261, 
a voluntary advancement to a child was decided to be void against a pur- 
chaser, for valuable consideration, with only constructive notice ; and also 
where the notice is direct, the rule seems to be the same. In equity 
the estate will be subjected to the claims of the parent's creditors: Guth- 
rie V. Gardner, 19 Wend. 414: Croft v. Arthur, 3 Dessaus. 223 ; Jencks v. 
Alexander, 11 Paige 619; Abney v. Kingsland, 10 Ala. 355; Doyle r. 
Sleeper, 1 Dana 531 ; Rucker v. Abell, 8 B. Monr. 566 ; and in Pennsylva- 
nia, the land may be levied upon directly : Kimmel v. McRight, 2 Penn. 
St. 38. See, also, ante, p. 34, in note. 

' This presumption of advancement may be rebutted by parol evidence : 
Dudley r. Bosworth, 10 Humph. 12; Jackson t'. Matsdorff, 11 John. 91 ; 
Taylor r. Taylor, 4 Gilm. 303 ; Tremper r. Burton, 18 Ohio 418. The 
clearest evidence of a present gift, accompanied by exclusive possession 
and valuable improvements, are necessary to establish a valid parol gift 
between father and son : Miller v. Hartle, 53 Penn. St. 108. 



238 ADAMS's DOCTRINE OF EQUITY. 

that at the time of the purchase, or in immediate connec- 
tion therewith, the father dealt with the property as his 
own; but the mere receipt of rent, which may possibly 
be by the child's permission, will not alter the presump- 
tion; or again, it may be shown that at the time of mak- 
ing the purchase, the father declared his intention either 
against, or in favor of the presumed advancement.^ It 
must be observed, however, that the only question to 
which the evidence can apply is, what the father in- 
tended at the time of the purchase, and not whether his 
intention has been afterwards changed. And for this 
reason his subsequent acts and declarations cannot be 
admitted as evidence in his favor, although those of the 
child might be so used.(^;) 

With respect to legacies, the distinction between lega- 
cies to strangers and those to children is that, in the case 
of a stranger, the legacy is considered mere bounty, and 
is dealt with by the ordinary rules of law; in the case of 
a child, it is presumed to be meant as a provision for him, 
and the ordinary rules are modified by that presumption. 

One instance in which this distinction occurs, regards 
the period from which interest is given. The ordinary 
rule is that, if the testator has not expressed a different 
|-^-|^o-i *intention, a legacy shall bear interest from the 
time fixed for payment of the principal, or if no 
time be fixed, then from the end of a twelvemonth after 
the testator's death. But if it be given by a parent, or 

[v) Murless v. Franklin, 1 Sw. 13 ; Grey v. Grey, 2 Id. 594 ; Sidmouth 
V. Sidmouth, 2 Bea. 447 ; Scawin v. Scawin, 1 N. C. C. 65 ; Skeats v. 
Skeats, 2 Id. 9. 

^ Subsequent declarations of the father, however, are incompetent: 
Tremper v. Barton, 18 Ohio 418. They were admitted, however, in Speer 
V. Speer, 1 McCart. 240. 



OF IMPERFECT CONSIDERATION. 239 

by one who stands in loco parentis, it is treated as a gift 
by way of provision; and the legatee, if he be not adult, 
and there be no other provision for his maintenance, will 
be allowed interest by way of maintenance from the time 
of the death, (ef')^ Another instance of the same distinc- 
tion occurs in the case of successive legacies or gifts, viz., 
where a legacy has been bequeathed or a promise made, 
which has been followed by a gift inter vivos, or by a 
a legacy of later date. 

(tr) Raven v. Waite, 1 Sw. 553 ; Donovan v. Needham, 9 Bea. 164. 

^ Generally, whea no time is fixed by a will, a pecuniary legacy is pay- 
able in a year after the testator's death, and not before, and interest is not 
payable until the end of the year, or the expiration of the period fixed by 
the will: Sullivan v. Winthrop, 1 Sumner 1 ; Eyre v. Grolding, 5 Binn. 475; 
Bitzer c. Hahn, 14 S. & R. 238. So in Virginia and New York: Shobe v. 
Carr, 3 Munf. 10 ; Williamson v. "Williamson, 6 Paige Ch. 298 ; Marsh v. 
Hague, 1 Edw. Ch. 174. See Hammond v. Hammond, 2 Bland 306. But 
where a legacy is given to an infant child who is otherwise unprovided for, 
interest will be allowed from the testator's death, whether a time is fixed 
for the payment of interest or not, and this doctrine applies to testators 
placing themselves in loco parentis: Sullivan v. Winthrop, ubi supra ; Hite 
V. Hite, 2 Rand 409 ; Miles v. Wister, 5 Binn. 479 ; Bitzer v. Hahn, 14 
S. & R. 232. So, though the legaisy is payable at twenty-one, and with- 
out mention of interest, Ibid. ; or is given for life, for separate use : Bird's 
Est., 2 Pars. Eq. 168 ; Bowman's Appeal, 34 Penn. St. 19. This exception 
does not extend to the case of a grandchild : Lupton v. Lupton, 2 John. Ch. 
614, See Smith v. Moore, 25 Verm. 127 ; Walker v. Walker, 27 Ala. 396 ; 
but see Bitzer v. Hahn, 14 S. & R. 232, semb. contr., also Bowman's Ap- 
peal, 34 Penn. St. 19 ; nor to grand-nephews : Miles v. Wister, 5 Binn. 
479; nor to the widow: Martin v. Martin, 6 Watts 67; Gill's Appeal, 2 
Penn.* St. 231. 

As a legacy to a child carries interest, in the accepted cases, on the ground 
of the duty of maintenance, where the parent has fulfilled that duty by 
providing maintenance out of another fund, the legacy does not necessarily 
carry interest : Rouse's Est., 9 Hare 649. When it is apparent that a legacy 
is intended for the immediate support of the legatee, it will bear interest 
from the death of the testator. If, however, it is charged on the income 
of the estate, it cannot be considered due till one year has elapsed : Morgan 
V. Pope, 7 Cold. (Tenn.) 541. 



240 . ADAMS's DOCTRINE OF EQUITY. 

It will be convenient to consider each case separately, 
taking first that of a prior legacy, and afterwards that of 
a prior promise. 

In the case of ^ prior legacy, followed by a gift or 
legacy of later date, the question which arises is, whether 
the later gift or legacy, was intended to be identical with 
the first, so as to operate either by way of anticipated 
payment or as a reiteration of the original gift. If it 
was so intended, and the intention is proved by admissible 
evidence, the first legacy is a obviously at an end, as if 
a man were to bequeath a particular horse, and were 
afterwards to give the horse in his lifetime, or again be- 
queath it to the same person. The construction put by 
law on the later gift or legacy is prima facie against its 
being meant as identical, and in favor of its being held an 
independent benefit. And if it be conferred by a written 
instrument, extrinsic evidence of the intention is not ad- 
missible. (:r) The construction, however, may be altered 
by a presumption of law, to be raised by a comparison of 
the two gifts, and of the motives respectively assigned 
for each, or by the relative position in which the parties 
r*in41 ^^^'^^^ The first Aground of presumption, arising 
from the similarity of the gifts and motives, is not 
material to our present purpose. It is sufficient to ob- 
serve, that mere equality of amount is not such an identi- 
fication of the gifts as will prevent their cumulative eff*ect. 
But if, in addition to this, the same motive is expressed 
for both, the double coincidence gives rise to a presump- 

[x) Ex parte Dubost, 18 Ves. 140 ; Kirk v. Eddowes, 3 Hare 509 ; 2 
Will, on Exors., 2d ed. 924 ; Hurst v. Beach, 5 Madd. 351 ; Suisse v. Lord 
Lowther, 2 Hare 424 ; Lee v. Paine, 4 Id. 201 ; Hall v. Hill, 1 Conn. & 
L. 120. 



OF IMPERFECT CONSIDERATION. 241 

tion that repetition was intended, and not accumulation. (^)^ 
The second ground of presumption arises out of the rela- 
tive position of the parties, and is that with which we are 
now more immediately concerned. If the donor be a 
parent, or in loco parentis, the presumption is that the first 
legacy was intended as a provision, proportioned to the 
then existing claims of the legatee, and that the later gift 
or legacy had the same object, and was intended as an 
immediate payment or a modified repetition, either in full 
or pro tanto, by reason of altered circumstances, of the 
first. And the circumstance, that the second benefit 
differs in amount or disposition from the first, is not incon- 
sistent with such presumption. The doctrine on this point 
is expressed by the maxim, that "the presumption is 
against a double portion." (0)^ The presumption thus 

( y) Hurst v. Beach, 5 Madd. 351 ; Suisse v. Lord Lowther, 2 Hare 424. 

(2) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 CI. & F. 146 ; Pym 
V. Lockyer, 5 M. & C. 29 ; Suisse v. Lord Lowther, 2 Hare 424 ; Lady 
Thynne v. Earl Glengall, 2 House Lds. Cas. 153. In Scotland the law is 
otherwise : Campbell v. Campbell, L. K. 1 Eq. 383. 

^ See the cases of Dewitt v. Yates, 10 Johns. 156 ; Jones r. Creveling's 
Ex'rs., 4 Harrison 127 ; Id., 1 Zabriskie 573, 

The rule, as established by these cases, is, that where the two bequests 
occur in the same instrument, the presumption is most strongly in favor 
of repetition ; but if in different instruments, then the presumption is, in 
general, in favor of cumulation. See also, Wilson r. O'Leary, L. R. 12 
Eq. 525. In the former case, the fact that the second legacy is charged 
upon land, will not rebut the presumption of repetition : Dewitt v. Yates, 
ut sup. ; Hooley v. Hatton, 1 Lead. Cas. Eq. 285. 

^ Ademption only takes place where a parent bequeaths a legacy to a 
child, and afterwards gives a portion to the same child, which is ejusdem 
generis. A house and lot is not ejusdem generis with a pecuniary legacy, 
and cannot adeem it : Swoope's Appeal, 27 Penn. St. 58. See also, Rogers 
V. French, 19 Geo. 316. 

In New York, it has been held that the intention of a testator that a 
subsequent gift or advancement shall operate as a satisfaction of a legacy 
cannot be presumed, for in such a case, there is an implied revocation of 
16 



242 ADAMS's DOCTRINE OF EQUITY. 

raised, whether it be based on a comparison of the two 
gifts, or on the relative position of the two parties, is 
against the prima facie construction of the second gift. 
And therefore it may be rebutted by extrinsic evidence 
of intention, and sustained by counter evidence of the 
same kind, notwithstanding that the gift is by a written 
instrument, {a) 

The second case is that of a promise inter vivos, followed 
by a gift or legacy of later date.^ 

If the benefit promised and the benefit conferred are 
precisely identical, no question arises ; for the promisor 
has done that which he undertook to do ; and his promise 
p^-jQr-i is in *fact performed. (^) But if they are not 
precisely identical, then a question arises whether 
the gift or legacy was meant in satisfaction, either wholly 
or in part, of the original promise. If an intention to 
that effect be shown, the promisee must elect between the 
two benefits. The principle of decision in this case is the 
same as in that of double legacies. The primd facie con- 
struction of the second gift is in favor of its being con- 
sidered independent of the first. And that construction 
may be rebutted, either by a comparison of the promise 
and the gift, and of the motives for which they are re- 
spectively expressed to be made ; or by the presumption 
that both a,re by way of portion, and consequently that 

. (a) Hurst v. Beach, 5 Madd. 351 ; Hall v. Hill, 1 Conn. & L. 120.; Kirk 
V. Eddowes, 3 Hare 509. 

(6) Blandy v. Widmore, 1 P. W. 324; Goldsmid v. Goldsmid, 1 Sw. 211. 

the will, which is forbidden by the Rev. Sts. : Langdon v. Astor's Execu- 
tors, 3 Duer 477. 

^ The subject of the satisfaction of debts, portions, and legacies, is very 
fully discussed in the notes to Ex Parte Pye, 2 Lead. Cas. Eq. 303, where 
all the American cases are cited and commented upon. The rules on the 
subject are in general the same in this country as in England. 



OF IMPERFECT CONSIDERATION. 243 

the second is in lieu of the first, (c)^ The effect, however, 
of differences between the promise and the benefit, is 
much greater than in the case of successive legacies ; for 
the donor must know that he cannot alter his promise, 
and therefore any variation from its terms tends to the 
conclusion that it was not in his mind.(^) 

The presumption which arises from the relationship of 
parent and child, exists also in a less degree with respect 
to creditors, whether mere strangers or children, to whom, 
by transactions independent of the relationship, the parent 
has become indebted. In such cases, the presumption is, 
that a payment by the debtor, equal to or exceeding the 
debt, is meant in discharge, and the same doctrine applies 
to a legacy, provided it be substantially equivalent to 
payment. (^)^ But the presumption is much weaker than 
with respect to portions, and may be excluded by a less 
degree of difference ; as, for example, if the legacy be 

(c) Ansley r. Bainbridge, 1 R. & M, 657 ; Jones v. Morgan, 2 Y. & C. 
403 ; Weall v. Rice, 2 R. & M. 251 ; Plunkett v. Lewis, 3 Hare 316 ; Hall 
V. Hill, 1 Conn. & L. 120. , 

{d) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 CI. & F. 146, 155 ; 
[Lady Thynne v. Earl of Glengall, 2 H. Lds. Cas. 153.] 

(e) Plunkett ». Lewis, 3 Hare 316 ; Jeffs v. Wood, 2 P. W. 129 ; Chancey's 
Case, 1 P. W. 408 ; Wallace v. Pomfret, 11 Ves. 542. 

^ Ilopwood V. Hopwood, 7 H. L. Cas. 728. A residuary legacy may be 
adeemed, and the ademption need not be entire, but may he pro tanto : 
Montefiore v. Guedalla, 1 De G., F. <Jb J. 93 ; Coventry v. Chichester, 2 Hem. 
& M. 149. See further, on this subject, McClure v. Evans, 29 Bea. 422 ; 
Ravenscroft r. Jones, 32 Id. 669 ; Hine v. Hine, 39 Barb. 507 ; Miner v. 
Atherton's Executor, 35 Penn. St. 528. Substituted and added legacies 
are to be raised out of the same fund and are subject to the same con- 
ditions : Leacroft t?. Maynard, 1 Ves. Jr. 279 ; Crowder p. Clowes, 2 Id. 
449 ; Johnstone v. The Earl of Harrowby, 1 De G., F. & J. 183 ; Note to 
Hooley v. Hatton, 1 Lead. Cas. Eq. 301. 

^ This was termed a " false principle" by the Vice-Chancellor of England 
in Hassell v. Hawkins, 4 Drew. 468. 



244 ADAMS's DOCTRINE OF EQUITY. 

less than the debt, or if it be payable at a different 
time.(/) 

Whenever the presumption arises, it may, as we have 
r*l Ofil ^^^^' *^® rebutted or confirmed by evidence, not- 
withstanding that the gift is by a written instru- 
ment.^ But it must be evidence in rebuttal or confirma- 
tion of the presumption, and not evidence to construe the 
instrument itself.^ The presumption, therefore, must first 
arise, and if the instrument is so worded that its prima 
facie construction is not altered by the relationship alone, 
extrinsic evidence of intention is not admissible. (^) 

The last equity which will be considered in the present 
chapter, is the converse to that of specific performance, 
and consists in giving effect to discharges by matter in 
pais of contracts under seal, and in confining the claim on 
a contract with a penalty to the specific performance of 
its terms. 

We will first consider the doctrine as to Discharges by 
Matter in Pais of Contracts under Seal.^ 

It is a rule of law, that an agreement under seal, tech- 
nically termed an agreement by specialty, can only be 
avoided by a like specialty ; and it is therefore unaffected 

(/) 2 Will, on Executors 929 ; 2 Story on Equity, s. 1122. 

[g] Wallace v. Pomfret, 11 Ves. 542 ; Hall v. Hill, 1 Conn. & L. 120. 

^ Miner r. Atherton's Executor, 35 Penn. St. 528. 

* Eaton V. Benton, 2 Hill 576 ; Jones v. Mason, 5 Rand. 577 ; Brady v. 
Cabitt, 1 Dougl. 30 ; Zeigler v. Eckert, 6 Penn. St. 13 ; Zeiter v. Zeiter, 4 
Watts 212. 

' See post, notes to pp. Ill, 112. 

It is settled, in Pennsylvania, that verbal stipulations by one party, on 
the faith of which a vrritten agreement is executed by the other, will con- 
trol the writing, even in the absence of evidence of a fraudulent design : 
Hultz V. Wright, 16 S. & R. 345 ; Christ v. Diffenbach, 1 Id. 464 ; Miller 
V. Henderson, 10 Id. 292; Clark v. Partridge, 2 Penn. St. 13 ; 4 Id. 166. 
See Keisselbrack v. Livingston, 4 John. Ch. 114. 



DISCHARGES, ETC., OF CONTRACTS, ETC. 245 

by an accord by parol, or other matter in pais, which 
would operate as a discharge of a simple contract. (^) In 
equity, however, the rule is otherwise. For the form of 
agreement is immaterial ; and if the act done is in sub- 
stance a discharge, it will warrant a decree for the execu- 
tion of a release, or for delivery up and cancellation of 
the specialty.^ 

The most ordinary application of this equity is in favor 
of sureties, where a guarantee has been given under seal, 
and the creditor, without the surety's consent, has dis- 
charged or modified the principal's liability. In this case 
the doctrine of the law is, that by such discharge or modi- 
fication of the principal's liability, the surety is absolutely 
discharged; for he has contracted to guarantee a specific 
agreement ; and if a new agreement be substituted with- 
out his assent, his contract is at an end.(/)^ 

*The same effect is produced if the creditor r-^-iriY-i 
enters into a binding contract to give time for pay- 
ment to the principal. For it would be a fraud on the 
contract, if he were afterwards to receive his debt from 

(A) 1 Selw. N. P. 518, 549. 

(i) Samnell v. Howarth, 3 Meriv. 272 ; Mayhew v. Crickett, 2 Sw. 186 ; 
Smith's Merc. Law 423 ; 3 Jarman's Bythewood, 3d ed., p. 298-305. 

^ Hurlbut V. Phelps, 30 Conn. 42. In general, however, the court will 
not decree that to be a release in equity which is not so at law, unless 
there be a valuable consideration : Cross v. Sprigg, 6 Hare 552 ; Tufnell 
r. Constable, 8 Sim. 69; Peaces. Hains, 17 Jurist 1091; 11 Hare 151; 
Campbell's Estate, 7 Penn. St. 100; Kidder v. Kidder, 33 Id. 268. See, 
also, Yeomans v. Williams, L. R. 1 Eq. 184 ; Taylor v. Manners, L. R. 1 Ch. 
Ap. 48 ; and the party claiming the benefit of this equitable doctrine, must, 
as in all other instances, do equity : Ileadlcy v. Goundry, 41 Barb. 279. 

'' On the subject of the discharge of a surety by the conduct of the cred- 
itor, see post, 268, note ; also. Pledge v. Buss, Johns. 663 ; Brubaker v. 
Okeson, 36 Penn. St. 519 ; Henderson v. Ardery, Id. 449 ; and the notes to 
Rees V. Berrington, 2 Lead. Cas. Eq. 814, where the American cases are 
cited. 



246 ADAMS's DOCTRINE OF EQUITY. 

the surety, and thus confer on him an immediate right of 
action against the principal. The position of the surety 
is therefore varied, and he is in consequence discharged 
altogether from his guarantee. If, however, the creditor, 
in agreeing to give time, expressly reserve his remedies 
against the surety, there is no discharge ; for although he 
undertakes not to sue the principal directly, he does not 
preclude himself from enabling the surety to do so. Nor 
will the surety be discharged by mere forbearance to sue, 
unless there be a stipulation in the guarantee, binding the 
party guarantied to use due diligence against the princi- 
pal, (k) 

The doctrine which has just been laid down is not 
peculiar to the Court of Chancery ; but its operation at 
law is confined to guarantees by simple contract. If the 
guarantee be by specialty, the rule that its discharge must 
be by a like specialty, prevents the creditor's conduct 
being pleaded at laAv. And a consequent equity arises to 
restrain him from suing at law, and to compel him, if 
requisite, to give up or cancel the guarantee. (/) 

The equity for relief against enforcement of Penalties, 
originates in the rule which formerly prevailed at law, that 
on breach of a contract secured by penalty, the full penalty 
might be enforced without regard to the damage sustained.^ 

{k) Ex parte Glendinning, Buck 517 ; Boultbee v. Stubbs, 18 Ves. 20 ; 
Eyre v. Everett, 2 Russ. 381. 

[l) Archer v. Hale, 1 Moore & P. 285 ; Aldridge v. Harper, 3 Moore & 
Sc. 518 ;■ Blake v. White, 1 Y. & C. 420 ; Brooks v. Stuart, 1 Bea. 512. 

* A Court of equity will always relieve against a penalty, where com- 
pensation can be made : Hackett v. Alcock, 1 Call. 533 ; Mayo v. Judah, 5 
Munf. 495 ; and also against back interest, secured by way of penalty : 
Mosby V. Taylor, Gilm. 172 ; and will not aid the recovery of a penalty of 
forfeiture, or anything in the nature of one : Livingston v. Tompkins, 4 
John. Ch. 431 ; McKim v. White Hall Co., 2 Md. Ch. 510 ; Shoup v. Cook, 



RELIEF AGAINST PENALTIES. 247 

The Court of Chancery, in treating contracts as matters 
for specific performance, was naturally led to the conclu- 
sion that the annexation of a penalty did not alter their 
character ; and in accordance with this view, would not on 
the one hand permit the contracting party to evade per- 
formance by paying the penalty ; and on the other hand, 
would restrain *proceedings to enforce the penalty r-^-, r^Q-, 
on a subsequent performance of the contract 
itself; viz., in the case of a debt, on payment of the prin- 
cipal, interest, and costs; or in that of any other contract, 
on reimbursement of the actual damage sustained. 

An authority of a similar kind has been now conferred 
on. courts of law by two statutes, the first of which 
applies to penalties for non-performance of covenants, and 
the second to those of non-payment of money, (tw)^ The 
effect of these statutes has been to diminish the frequency 

(m) 8 & 9 Wm. 3, c. 11, s. 8 ; 4 & 5 Ann. c. 16, ss. 12, 13 ; 1 Selw. 
N. P. 542, 569, 588. 

1 Carter 135. But where the sums covenanted to be paid are in the 
nature of stipulated damages, a Court of Chancery will not relieve : Skinner 
V. Dayton, 2 John. Ch. 526 ; s. c. Skinner r. White, 17 John. 357. See Mso, 
White V. Dingley, 4 Mass. 433 ; Pierce v. Fuller, 8 Id. 223 ; Tingley v. 
Cutler, 7 Conn. 291 ; Slosson v. Beadle, 7 Johns. 72 ; Myers v. Hay, 3 
Missouri 98 ; Gammon v. Howe, 14 Maine 250. Where a stipulation is 
designated in the contract as a penalty, how far a Court will consider a 
sum stipulated as liquidated damages, see Taylor v. Sandiford, 7 Wheat. 
19 ; Curry v. Larer, 7 Penn. St. 470 ; Streeper v. Williams, 48 Id. 450 ; 
Shreve v. Brereton, 51 Id. 175. See on this subject the notes to Peachy 
r. Somerset, 2 Lead. Cas. Eq. 895 ; where the American and English cases 
are collected and very fully considered. 

A proviso in a mortgage, that the whole sum shall become due upon 
the failure to pay any one of the instalments on the day, is in the nature 
of a penalty, against which equity will relieve upon adequate compensa- 
tion, viz., payment of instalment due, interest and costs : Tiernan v. 
Hinman, 16 111. 400 ; Martin v. Melville, 3 Stockt. 222 ; Thompson v. Hudson, 
L. R. 2 Eq. 612. See, however, Sterne r. Beck. 1 De G., J. & Sm. 598. 

^ These or similar statues are in force generally in the United States. 



248 ADAMS's DOCTEINE OF EQUITY. 

of equitable interference. But they do not affect the au- 
thority to interfere. The jurisdiction is not limited to the 
case of bonds or of instruments which in terms impose a 
penalty ; but extends to all agreements where a stipula- 
tion is made in the- event of non-performance, which on 
the whole matter appears intended as such. If it be not 
in truth meant as a penalty, but be merely an agreement 
between the parties that a fixed sum shall be paid, as 
ascertained or liquidated damages, for doing or omitting 
a particular act, there is no equity to substitute a new 
agreement. The mere use, however, of the words " liqui- 
dated damages," will not of itself decide the question ; 
but it depends on the substantial meaning of the contract.^ 
If, for example, the payment of a smaller sum is secured 
by a larger, or if there be a series of covenants of varying 
importance, and the same specific sum is made payable in 

* It is stated by Judge Hare, in his lucid and able notes to Peachy v. 
Somerset, 2 Lead. Cas. Eq., Pt. ii., 472, upon a full examination of the cases, 
that the result " seems to be, that equity will not permit a recorery for 
the breach of a contract, to an extent manifestly greater than the injury 
suffered, but that the parties may fix upon that amount of compensation, 
which does not come in conflict with this limitation. Hence, when the in- 
jury is susceptible of definite admeasurement, as in all cases where the 
breach consists in the non-payment of money, the parties will not be 
allowed to make a stipulation for a greater amount, whether in the form 
of a penalty or of liquidated damages. But when, on the other hand, the 
injury in question is uncertain in itself, and insusceptible of being reduced 
to certainty by a legal computation, it may be settled beforehand, by special 

agreement But even when the subject-matter is one which 

admits of. compensation fixed by agreement, and not by the law, still it 
must be a question, whether the parties have so meant to fix it, and 
whether a stipulation for the payment of a sum certain, in case of default, 
is intended as a penalty, or as a liquidation of the damages. This is ob- 
/ viously a question of intention, determinable, in the first place, by what 
appears on the face of the contract itself; and next, by a resort to extrin- 
sic circumstances." See also a full discussion of the law on this subject 
in Cotheal v. Talmage, 5 Selden 551. 



RELIEF AGAINST PENALTIES. 249 

respect of each, the stipulated payment will be held a penal 
one, notwithstanding that it may be otherwise named in 
the contract, (w) The distinction thus drawn between a 
penalty for securing the performance of the contract, and 
a stipulation which makes part of the contract itself, may 
be illustrated by the rule, that if a certain rate of interest 
be reserved on a mortgage, with an agreement that if it 
be not paid punctually, the rate shall be increased, the 
larger *interest is in the nature of a penalty, and r-^-. J^Q^ 
may be relieved against in equity. But on the 
other hand, if the larger rate be originally reserved, with 
an agreement for reduction on punctual payment, the con- 
dition for such punctual payment is part of the contract, 
and relief cannot be given if it is not fulfilled, (o)^ 

The same relief which is granted in the case of penal- 
ties has also been extended to clauses of re-entry for non- 
performance of the covenants in a lease.^ In respect to 
covenants for payment of rent, the jurisdiction for this 
purpose has been long established on the principle that 
payment of the rent with interest is a complete compen- 
sation for the damage sustained. Its soundness, even in 
this case, has been questioned by Lord Eldon, for it is by 
no means true that subsequent interest is an equivalent 
for punctuality ; but its exercise is established by pre- 

(n) Rolfe V. Peterson, 2 B. P. C. by Toml. 436 ; Kemble v. Farren, 6 
Bing. 141 ; Boys v. Ancell, 5 Bing. N. C. 390 ; 3 Jarm. Byth. 325-336. 
(o) Nicholls V. Maynard, 3 Atk. 519. 

^ A stipulation in a mortgage, that if it becomes necessary to forclose, a 
reasonable amount shall be added as attorney's fees, is not in the nature 
of a penalty and is valid : Nelson v. Everett, 29 Iowa 184 ; Williams v. 
Meeker, Id. 292. 

' Or breach of conditions subsequent : Smith v. Jewett, 40 N. H. 530. 
See, also, Warner v. Bennett, 31 Conn. 468 ; Robinson v. Loomis, 51 Penn. 
St. 78 ; Mahoning Co. Bank, 32 Id. 158. 



250 ADAMS's DOCTRINE OF EQUITY. 

cedent, and has been for the last century recognised by 
an express statute, defining the circumstances to which 
it shall apply, and conferring a similar jurisdiction on 
Courts of law. (jo) To this extent therefore the jurisdic- 
tion is settled ; but it is not carried beyond this limit. 
Relief will be granted where a forfeiture is incurred by 
non-payment of money, and perhaps in other cases also, 
if a special equity be raised on the ground of unavoidable 
ignorance or accident; but it will not be granted without 
such special equity, in respect of covenants for repairing, 
insuring, or doing any specific act, where the compensa- 
tion must be estimated in damages. (§') 

{p) 4 Geo. 2, c. 28 ; Adams on Ejectment 122. 

[q] Hill V. Barclay, 18 Ves. 56 ; Reynolds v. Pitt, 19 Id. 134 ; Ex parte 
Vaughan, T. & R. 434 ; Green v. Bridges, 4 Sim. 96 ; White v. Warner, 2 
Meriv. 459 ; Elliott v. Turner, 13 Sim. 477. 



PERFECT AND IMPERFECT MORTGAGES. 251 



*CH AFTER III. PIIO] 

OF MORTGAGES, BOTH PERFECT AND IMPERFECT. 

The equity for relief against penalties applies most ex- 
tensively to the case of Forfeited Mortgages, where a 
loan has been secured by the transfer of property, with 
a condition to redeem on a specified day, and the right of 
redemption has been forfeited at law by non-payment at 
the appointed time. There are other methods of charging 
loans on property, which will be presently noticed as im- 
perfect mortgages. But a regular mortgage is in the form 
which has been just mentioned, and may be defined as a 
"security for a debt, created by conveyance of the legal 
ownership in property, either to the entire extent of the 
mortgagor's estate, or for a partial estate carved out of it, 
with a proviso that, on payment at a specified time the 
conveyance shall be void or the mortgagee shall reconvey."* 

' It 18 perfectly well settled that a mortgage is a mere secarity for a 
debt : Wilson v. Troup, 2 Cow. 195 ; Simpson v. Ammons, 1 Binney 177 ; 
Ragland v. Justices, 10 Geo. 65 ; 4 Kent's Com. 160 ; Williams on Real 
Prop. 391 ; note to Thornborough v. Baker, 2 Lead. Cas. Eq. 857. And 
from this doctrine several consequences arise. 

First. The interest of the mortgagee in fee, or for a smaller estate, is 
personalty, and his executor, and not the heir, is entitled to the money 
secured by the mortgage : Thornborough v. Baker, supra. 

Second. It is not necessary that there should be any independent evi- 
dence of the debt, or any personal or collateral security for the same. The 
mortgage alone is suflBcient : Mitchell v. Burnham, 44 Maine 299. See 
also Chappell v. Allen, 38 Mo. 213 ; Bank v. Anderson, 14 Iowa 544. 

Third. The payment or discharge of the mortgage debt revests the estate 



2?2 ADAMS'S DOCTRINE OF EQUITY. 

Until the day of redemption is passed, the debtor is 
not invested with any special equity. («) He may pay 

to) Brown v. Cole, 14 Sim. 427. 

at law in the mortgagor without the necessity of a reconveyance : 4 Kent's 
Com. 194, and notes ; Williams on Real Prop. 391 ; McNair ». Picotte, 33 
Mo. 57; Large ». Van Doren, 1 McCart. 211; Gray v. Jenks, 3 Mason 
526 ; Martin t>. Mowlin, 2 Burrow 978. Though see Cross v. Robinson, 21 
Conn. 379. It must be done before condition broken : Stewart v. Crosby, 
50 Maine 130 ; Grover v. Flye, 5 Allen 543. 

Fourth. The transfer or extinguishment of the debt will operate as a 
transfer or extinguishment of the mortgage : Hawkins v. King, 2 A. K. 
Marsh. 109 ; Barnes v. Lee, 1 Bibb 526 ; Ackla v. Ackla, 6 Penn. St. 228 ; 
Wallis V. Long, 16 Ala. 738 ; Smith v. Smith, 15 N. H. 55 ; Moore v. Bea- 
8om, 44 Id. 215; Armitage v. Wickliflfe, 12 B. Mon. 488; Marriott v. 
Handy, 8 Gill 31 ; Hadloek ». Bulfinch, 31 Maine 246, 308 ; Wilson v. 
Drumrite, 21 Mo. 325 ; Blodgett v. Wadhams, Hill & Denio 65 ; Ledyard 
V. Chapio, 6 Ind. 320; Keyes v. Wood, 21 Vt.^332 ; Mapps v. Sharpe, 32 
Id. 13 ; Dearborn v. Taylor, 18 N. H. 153 ; Potter v. Stevens, 40 Mo. 229; 
Moore ». Cornell, 68 Penn. St. 320 ; Hyman v. Devereux, 63 N. C. 624 ; 
though see Dwinel v. Perley, 32 Maine 197 ; Chappell v. Allen, 38 Mo. 
213 ; Banko. Anderson, 14 Iowa 544; Olds v. Cummings, 31 111. 188. An 
assignment of the mortgage without the debt is a nullity : Polhemus v. 
Trainer, 30 Cal. 685 ; Merritt v. Bartholick, 36 N. Y. 44. 

Fifth. But the fact that a simple contract debt is barred by the Statute 
of Limitations, will not prevent recovery upon a mortgage given to secure 
it : Elkins v. Edwards, 8 Geo. 326 ; Thayer ». Mann, 19 Pick. 535 ; Bush v. 
Cooper, 26 Miss. 599 ; Whipple v. Barnes, 21 Wis. 327. Though in Cali- 
fornia, under the statute in that state, the rule is otherwise : Lord v. Mor- 
ris, 18 Cal. 482. 

Sixth. It has been held that a tender of the debt on or after the day upon 
which it falls due, discharges the lien of the mortgage : Kortrightr. Cady, 
21 N. Y. 343 ; Caruthers v. Humphreys, 12 Mich. 270 ; Van Husen v. 
Kanouse, 13 Mich. 303. But it may well be doubted whether these decisions 
are not opposed to the policy of the recording acts, and whether the courts 
in other. states will not hold a different doctrine. 

Seventh. A mortgage being a mere security for a debt, it may be given 
to secure future advances, as well as an existing indebtedness : Shirras v. 
Craig, 7 Cranch 34 ; Johnson v. Richardson, 38 N. H. 353 ; Seymour v. 
Darrow, 31 A''t. 122. And see, moreover. Rowan v. Sharpens Rifle Co., 29 
Conn. 282 ; Thomas v. Kelsey, 30 Barb. 268 ; Bell v. Fleming, 1 Beasley 
13-490 ; Robinson v. Williams, 22 N. Y. 380 ; Ladue v. The Railroad Co., 
13 Mich. 380 ; Joslyn v. Wyman, 5 Allen 62 ; 4 Kent's Com. 175 ; Ward 



PERFECT AND IMPERFECT MORTGAGES. 253 

his money according to the proviso, and may thus avoid 
the conveyance at law ; or if the proviso is not for an 

r. Cooke, 2 Green (N. J.) 93 ; Tully v. Harloe, 35 Cal. 302 ; Goddard v. 
Lawyer, 9 Allen 78 ; Collins v. His Creditors, 18 La. Ann. 235 ; Foster r. 
Reynolds, 38 Mo. 553 ; Philadelphia, Wilmington & Baltimore R. R. r. 
Woelpper, 64 Penn. St. 366. And the general rule appears to be that such 
advances, if made in pursuance of the original agreement, ■will be pro- 
tected against intervening encumbrancers and purchasers with notice 
of the agreement, otherwise not : see Farnum v. Bennett, 21 N. J. 87 ; 
see also. Summers r, Roos, 42 Miss. 749 ; D'Meza v. Generis, 22 La. Ann. 
285. In Ilopkinson v. Rolt, 9 House Lds. Cas. 514, however, it was held 
that where there is a first mortgage to secure future advances, and a second 
mortgage is afterwards given of which the first mortgagee has notice, all 
advances made after such notice will be postponed to the second mortgage ; 
and see The Bank of Montgomery County's Appeal, 36 Penn. St. 170. 
This decision overruled the early case of Gordon r. Graham, 2 Eq. Cas. 
Abr. 598, which was, however, erroneously reported, the decision being in 
fact the other way. But the doctrine in Gordon r. Graham, as reported, 
was followed in Wilson v. Russell, 13 Md. 495. How far it is essential 
that the terms of the agreement for future advances should appear on the 
face of the mortgage is not quite clear: 4 Kent 175. If the advances do 
not exceed the nominal amount of the lien when recorded, it is decided 
that it is not necessary that they should so appear, or that the creditor 
should have notice : Craig v. Tappin, 2 Sandf. Ch. 78 ; Cadwalader v. Mont- 
gomery, 3 Am. Law Reg. 169 ; s. c. Moroney's Appeal, 12 Har. 372; Mil- 
ler V. Lockwood, 32 N. Y. 293. In some of the states, bond debts may be 
tacked to a mortgage as against heirs and devisees, but not as against en- 
cumbrancers. See note to Marsh v. Lee, 1 Lead. Cas. Eq. 494 ; Trescott 
V. King, 2 Selden 147. A mortgage of personal property given to secure 
future advances, as well as an existing debt, is valid for the sum due {ft 
the time the mortgagees assert their title : Fairbanks v. Bloomfield, 5 Duer 
434. See also, Chapin r. Cram, 40 Maine 561 ; Hamilton v. Rogers, 8 Md. 
301. In the former case a mortgage of stock provided that all additions 
subsequently made, should be held in the same manner as the goods then 
in store. It was held that this clause could have no effect to vest such ad- 
ditions in the mortgagee, without some further act by the mortgagor. See, 
in this connection, Carpenter v. Simmons, 1 Rob. (N. Y.) 360; Barnard ». 
Moore, 8 Allen (Mass.) 273 ; Speer r. Skinner, 35 111. 282. In regard to 
mortgages of personal property to be acquired in future, a very clear state- 
ment of the law upon the subject will be found in the opinion of the chan- 
cellor, in Holroyd v. Marshall, 9 Jur. N. S. 213 ; 10 H. L. Cas. 191. See 
also. Smith urst v. Edmunds, 1 McCart. 413, As to mortgages by railroads 



^54 ADAMS's DOCTRINE OF EQUITY. 

avoidance of the estate, but for a reconveyance to be made 
by the mortgagee, he may call on the mortgagee to re- 
convey accordingly, and on his refusal may file a bill for 
specific performance. After the day of redemption is 
passed, a special 'equity arises for redemption. The ex- 
press remedy under the proviso is gone; the mortgagee's 
estate is absolute at laAv; and the mortgagor's right, to the 
extent to which it was originally transferred to the mort- 
r*m 1 S^S^^5 is *^t 1^^ finally extinguished. If he has 
mortgaged his entire estate, e. g., if he has mort- 
gaged land in fee simple, he has no interest remaining; if 
he has mortgaged a partial estate carved out of his own, 
e. g., if, being tenant in fee, he has mortgaged for a term, 
he has only the reversion expectant thereon,^ 

The equity is, that the real transaction was a loan on 
security, and the forfeiture by non-payment a mere 
penalty, which may be relieved against on a subsequent 
satisfaction of the debt. And in accordance with this 
equity the mortgagor may file a bill, notwithstanding for- 
feiture, praying for an account and redemption of the 
estate, and insisting on a reconveyance by the mortgagee 
on repayment of the principal and interest due, together 
with all costs in equity or at law properly incurred by 
the mortgagee in protecting his right. (^) Under this 
head are included costs fairly incurred in defending the 
title to the estate, in keeping the property in necessary 
repair, in procuring a renewal of leasehold interests, and 
' so forth ; but not the costs of mere improvements, unless 

(6) Dryden v. Frost, 3 M. & C. 670 5 Morley ». Bridges, 2 Coll. 621. 

of subsequently acquired property, see Morrill v. Noyes, 56 Maine 458 ; 
Pierce v. Milwaukee R. R. Co., 24 Wis. 551 ; Philadelphia, Wilmington & 
Baltimore Railroad Co. v. Woelpper, 64 Penn. St. 366. 
^ Alden v. Garver, 32 111. 32. 



PERFECT AND IMPERFECT MORTGAGES. 255 

they were made by the mortgagor's consent, or acquiesced 
in by him after notice, (c)^ ' 

If the transaction be not in fact a loan, but a hond fide 
sale, with power to repurchase, there is no equity to in- 
terfere. (fZ) A clause of redemption, however, is prima 
facie evidence of a loan. And even if on the face of the 
conveyance the transaction is termed a purchase, yet its 
true character may be proved by parol evidence, or by the 
subsequent conduct of the parties themselves, e. g., if the 
alleged vendee, instead of entering into receipt of the 
rents, demands and receives interest for his purchase- 
money. ((5)^ 

(c) Sandon ». Hooper, 6 Bea, 246 ; 14 L. J, 120. 

(d) Davis v. Thomas, 1 R. & M. 506 ; Williams v. Owen, 10 Sim. 386 ; 
Reversed, 12 L. J. 207 ; Bulwer v. Astley, 1 Ph. 422 ; Belcher v. Varden, 
2 Coll. 162 ; [Ford v. Irwin, 18 Cal. 117.] 

ie) Maxwell©. Mountacute, Prec. Chanc. 526. 

^ See post, note to page 118. 

* A deed absolute on its face may be shown to be a mortgage by parol 
evidence, and when it appears that a deed was intended as security for a 
debt, the debt being paid, the debtor will be entitled to a reconveyance of 
the estate : Kenton v. Vandergrift, 42 Penn. St. 339 ; Taylor v. Luther, 2 
Sum. 228; Morris v. Nixon, 1 How. U. S. 118; Slee v. The Manhattan 
Company, 1 Paige 48 ; Whittick v. Kane, 1 Id. 202 ; Van Buren v. 01m- 
stead, 5 Id. 1 ; Strong r, Stewart, 4 John. Ch. 167 ; Ross v. Norvell, 1 
Wash. CVa.) 14 ; Kunkle v. Wolfersberger, 6 Watts 126 ; Reitenbaugh ». 
Ludwick, 31 Penn. St. 131 ; Wilson r. Shoenberger, Id. 295; (though see 
Alderson v. White, 2 De G. & J. 97) ; Todd v. Campbell, 32 Penn. St. 
250; Kellum v. Smith, 33 Id. 158; Wing v. Cooper, 37 Vermont 169 ; 
Clark V. Conceit, 3 Green (N. J.) 358 ; McNeill v. Narsworthy, 39 Ala. 
156 ; Gay «. Hamilton, 33 Cal. 686 ; Shays v. Norton, 48 111. 100 ; Turner 
V. Kerr, 44 Mo. 429 ; PhUlips v. Hulsizer, 20 N. J. Eq. 308 ; Whiting v. 
Eichelberger, 16 Iowa 422; Halo v. Shiek, 57 Penn. St. 320; Parmalee v. 
Lawrence, 44 111. 405 ; Odenbaugh v. Bradford, 67 Penn. St. 96 ; Sweet v. 
Parker, 22 N. J. Eq. 453 ; Horn v. Keteltas, 46 N. Y. 605 ; Harper's Ap- 
peal, 64 Penn. St, 315 ; Keinck v. Price, 4 W. Va. 4 ; Crane r. De Camp, 
21 N. J. Eq. 414. A court of law will not treat an absolute deed as a 
mortgage: Farley ». Goocher, 11 Iowa 570; Johnson's Ex'rs. t*. Clark, 5 



256 ADAMS's DOCTRINE OF EQUITY. 

If the character of a security is once impressed on the 

*conveyance, it is a rule never departed from, 

L -■ that no contemporaneous stipulation can clog the 

Ark. 321 ; McDonald v^ McLeod, 1 Ired. Eq. 221 ; Randall v. Phillips, 3 
Mason 378 ; McLaurin v. Wright, 2 Ired. Ch. 94 ; Hudson v. Isbell, 5 Stew. 
& Port. 67 ; Murphy «. Trigg, 1 Monr. 72; Lewis v. Robards, 3 Id. 406; 
Blair v. Bass, 4 Blackf. 539 ; Delahay v. McConnel, 4 Scam. 156 ; Sellers 
». Stalcup, 7 Ired. Eq. 13; Hinson v. Partee, 11 Humph. 387 ; Bank of 
Westminster v. Whyte, 1 Md. Ch. 536 ; Conner v. Banks, 18 Ala. 42 ; 
Crews V. Threadgill, 35 Id. 334 ; Murphy v. Calley, 1 Allen 107; Steel v. 
Steel, 4 Id. 417 ; Vanderhaize v. Hughes, 2 Beas. 244 ; Lockerson v. Still- 
well, Id. 357 ; Artz v. Grove, 21 Md. 456 ; Rowan v. The Sharpe Rifle 
Co., 31 Conn. 1; Lee v. Evans, 8 Cal. 424; Hovey v. Holcomb, 11 
111. 660; Carter v. Carter, 5 Texas 93; Russell's Appeal, 15 Penn. St. 
322 ; Bragg- v. Massie's Ex'rs., 38 Ala. 89. But see Thomas v. McCor- 
mack, 9 Dana 108 ; Streator v. Jones, 1 Mur. 449; Thompson v. Patton, 
5 Litt. 74 ; Bryant v. Crosby, 36 Maine 562 ; Brown v. Carson, 1 Busbee 
Eq. 283 ; Mann's Ex'rs. v. Falcon, 25 Texas 271 ; Cunningham v. Hawkins, 
27 Cal. 603. But the proof in such case must be clear, strong, and satis- 
factory, especially against an answer denying the facts : English v. Lane, 
1 Porter 328 ; Conwell v. Evill, 4 Blackf. 67 ; Scott v. Britton, 2 Yerg. 215 ; 
Fay V. Eastin, 2 Porter 414 ; Lane v. Dickerson, 10 Yerg. 373 ; Elliott v. 
Maxwell, 7 Ired. Eq. 246 ; Chapman v. Hughes, 14 Ala. 218 ; Arnold v. 
Mattison, 3 Rich. Eq. 153 ; Sweet v. Mitchell, 15 Wis. 641 ; Tillson v. 
Moulton, 23 111. 648 ; Kent v. Lasley, 24 Wis. 654 ; McGinity v. McGinity, 
63 Penn. St. 38^. See the American note to Thornbrough v. Baker, 2 
Lead. Cas. Eq., p. 857, 3d Am. ed. ; and to Woollam v. Hearn, Id., page 
404, where the question of the admissibility of parol evidence, in such 
case, is discussed at large, and placed upon its true ground, the establish- 
ment of an equity of redemption in the grantor, and not the creation of a 
parol defeasance. 

On the same principle, equity leans towards considering an absolute 
deed, with an agreement for reconveyance on certain conditions, as a 
mortgage, and not a conditional sale : Pearson v, Seary, 35 Ala. 612 ; Pen- 
soneau v. Pulliam, 47 111. 58 ; Sharkey v. Sharkey, 47 Mo. 543 ; Robinson 
V. Willoughby, 65 N. C. 520. See also Holton v. Meighen, 15 Minn. 69 ; 
Fiedler v. Darrin, 59 Barb. (N. Y.) 651. Par«)l evidence of all the material 
facts will be admitted, and, if it appear to have been really intended as a 
security for money, it will be decreed a mortgage. Great inadequacy of 
consideration tends strongly to establish such a conclusion, and the fact 
that the agreement for reconveyance contains no promise by the mortgagee 
to repay the money, and that no personal security is taken, will not dis- 



PERFECT AND IMPERFECT MORTGAGES. 257 

right of redemption, or entitle the creditor to more than 
repayment of his principal, interest, and costs. This rule 
is expressed by the maxim that " Once a mortgage 
always a mortgage :" and stipulations repugnant to this 
maxim have been frequently set aside. ^ Such, for ex- 



prove it : Russell V. Southard, 12 How. U. S. 139 ; McLaughlin v. Shep- 
herd, 32 Maine 143 ; Turnipseed v. Cunningham, 16 Ala. 501 ; Poindexter 
V. McCannon, 1 Dev. Eq. 377 ; "Whitney v. French, 25 Verm. 663 ; Cross v. 
Hepner, 7 Ind. 359 ; Kerr v. Gilmore, 6 Watts 405 ; Brown v. Nickle, 6 
Barr 390 ; Pearson v. Seay, 38 Ala. 643 ; Anthony v. Anthony, 23 Ark. 
4T9 ; Stephenson v. Haines, 16 Ohio St. 478 ; Snyder v. Griswold, 37 111. 
216 ; Tibbs v. Morris, 44 Barb. (N. Y.) 138 ; Trucks v. Lindsey, 18 Iowa 
504 ; Sears v. Dixon, 33 Cal. 326 ; Carpenter v. Snelling, 97 Mass. 452 ; 
Tabor v. Hamlin, Id. 489. But a conditional sale will unquestionably be 
supported where the intention of the parties is clear : Conway v. Alex- 
ander, 7 Cranch 218 ; cases cited, note to Thornbrough v. Baker, ut supr., 
p. 634 ; Forkner t'. Stuart, 6 Gratt. 197 ; Yasser v. Yasser, 23 Miss. (Cushm.) 
378 ; Gait V. Jackson, 9 Geo. 151 ; 4 Kent 144 ; Pitts v. Cable, 44 111. 103. 
A deed conveying land in lieu of a debt cannot be construed a mortgage : 
Kearney v. Macomb, 1 Green (N. J.) 189. No instrument can be con- 
strued a mortgage, in which there does not exist both the rigkt to foreclose 
and the right to redeem : Chaires v. Brady, 10 Florida 133. The test of the 
distinction is said to be whether the relation of debtor and creditor in fact 
subsisted between the parties : see Kent 143, note. Or, to borrow the 
distinction laid down in Marvin v. Titsworth, 10 Wis. 320, if there is a 
conveyance directly to the creditor, and the trust is to be executed by 
him, it is a mortgage ; if to a third party, who acts as the agent of both 
the debtor and the creditor, it is not a mortgage, but a trust. As to which, 
see infra, 126; see also Slowey v. McMurray, 27 Missouri 119; Hickox v. 
Lowe. 10 Cal. 197. 

' This is the universal rule in equity, and no agreement in a mortgage 
to change it into an absolute conveyance, upon any condition or event 
whatever, will be allowed to prevail: Clark v. Henry, 2 Cow. 324; 
Wheeland v. Swartz, 1 Yeates 579 ; Johnston v. Gray, 16 S. & R. 361 ; 
Bloodgood V. Zeily, 2 Cai. Ca. 124 ; Stoever v. Stoever, 9 S. & R. 434 ; 
Wharf c. Howell, 5 Binn. 499 ; Cooper v. Whitney, 3 Hill 95 ; Palmer v. 
Guernsey, 7 Wend. 248; Nugent v. Riley, 1 Mete. 117: Dey v. Dunham, 
2 John. Ch. 182 ; 15 John. 555 ; Hiester v. Madeira, 3 W. & S. 384. See 
also Rogan v. Walker, 1 Wis. 527 ; Knowlton v. Walker, 13 Id. 264 ; 
Woods V. Wallace, 22 Penn. St. 171 ; Locke v. Palmer, 26 Ala. 312. Al- 
though in the writing creating an equitable mortgage the time of redemp- 
17 



258 ADAMS's DOCTRINE OF EQUITY. 

ample, are agreements for restricting the right of redemp- 
tion to a limited time, (/) for restricting it to a particular 
line of heirs, [gY for entitling the mortgagee after default 
to purchase at a specific sum, (A) for converting arrears of 
interest into principal, so as in effect to give compound 
interest, (/) for allowing the mortgagee a perc^^ntage as 
receiver, beyond interest on the money advanced, (/r) or 
for allowing him, when in possession under a West Indian 
mortgage, a like percentage as consignee of the produce. 
There is a different, and apparently exceptional, rule 
in favor of a West Indian mortgage out of possession. 

{f) Newcomb v. Bonham, 1 Vern. 7. 

[g] Howard v. Harris, 2 Ch. Ca. 147. 

\h) Willett V. Winnell, 1 Vern. 488. 

[i) Blackburn v. Warwick, 2 Y. & C. 92. 

[Ti] Davia v. Dendy, 3 Madd. 170; Langstaffe v. Fenwick, 10 Ves. 405. 

tion is limited, yet such limitation has no effect on the right to redeem. 
Once a mortgage always a mortgage : Stover v. Bounds, 1 Ohio St. 107. 
See also note to Thornbrough v. Baker, 2 Lead. Cas. Eq, 857 ; Clark v. 
Condit, 3 Green (N. J.) 358. The purchase of the equity of redemption 
by a mortgagee is viewed with great disfavor in equity, and will be avoided, 
for constructive fraud or unconscientious advantage : Russell ». Southard, 
12 How. U. S. 139 ; Piatt v, McClure, 3 Wood. & M. 151 ; note to Thorn- 
brough V. Baker, ut sup. But if perfectly fair it will be sustained: Sheckell 
V. Hopkins, 2 Md. Ch. 89 ; McKinstry v. Conly, 12 Ala. 678 ; Torill v. 
Skinner, 1 Pick. 213 ; Green v. Butler, 26 Cal. 595 ; Decker v. Hall, 1 Edm. 
(N. Y.) Sel. Cas. 279. Such a purchase will generally create a merger of 
the mortgage : Jenning's Lessee v. Wood, 20 Ohio 261 ; Bailey v. Richard- 
son, 9 Hare 734; though not necessarily: Polk v. Reynolds, 31 Md. 106. 
But this may be prevented by taking the conveyance of the equity of re- 
demption in the name of a trustee, with a declaration of the intention to 
that effect : Bailey v. Richardson, 9 Hare 734. And equity will in general 
relieve against such merger, if necessary : Slocum v. Catlin, 22 Verm. 137. 
A decree of foreclosure does not merge the lien of the mortgagee ; that 
continues until the debt is paid or discharged : Hendershott v. Ping, 24 
Iowa 134. 

^ See Johnston v. Gray, 16 S. & R. 361 ; Slowey e. McMurray, 27 Miss, 
113. 



PERFECT AND IMPERFECT MORTGAGES. 259 

And he is allowed to insist on being consignee of the 
produce, with the usual percentage on the consignments 
made.(/) 

The relief thus given on a forfeited mortgage was at 
first confine^, to Courts of equity, and the forfeiture at 
law continued absolute. A partial jurisdiction has been 
now created at law, but it is confined to cases of the 
simplest kind, and does not apply even to them if 
any suit of foreclosure or redemption has been com- 
menced. 

The enactment on this subject is, that where an action 
is brought by a mortgagee, either for payment of the 
money or for possession of the estate, and no suit of fore- 
closure or of redemption is pending, if the mortgagor 
shall appear and become defendant in the action, and 
shall *pay to the mortgagee, or on his refusal, p^^ ^ o-i 
shall bring into Court the principal, interest, and 
costs, the Court of law may discharge him from the mort- 
gage, and may compel the mortgagee to reconvey. By 
the same statute it is enacted, that where a bill of fore- 
closure is filed, the Court of equity may, on the defend- 
ant's application, and on his admitting the plaintiff's 
title, make such order or decree before the hearing as 
it might have made if the suit had been brought to a 
hearing. But the act does not apply to cases where the 
right of redemption or the sums chargeable are in contro- 
versy, (m) 

The mortgagor's right to redeem is technically called 
his " Equity of Redemption," and is treated as a continu- 

(Z) Bunbury v. Winter, 1 Jac. &■ W. 255 ; Leith r. Irvine, 1 M. & K. 277 ; 
Falkner v. Daniel, 3 Hare 218. 

(w) 7 Geo. 2, c. 20 ; Bastard v. Clarke, 7 Ves. 489 ; Praed v. Hull, 1 S. 
& S. 331 5 Piggin v. Cheatham, 2 Hare 80 ; Reeves v. Glastonbury Canal 
Company, 14 Sim. 351. 



260 ADAMs's DOCTRINE OF EQUITY. 

ance of his old estate, subject to the mortgagee's pledge 
for repayment.^ 

It therefore remains subject to the ordinary incidents of 

' Contracts made with the mortgagor to lessen or embarrass the right of 
redemption, are regarded with jealousy: Holridge v. Gillespie, 2 John. Ch. 
34. And a mortgagee before foreclosure can do no act to bind the mort- 
gagor when he offers to redeem : Wilson v. Troup, 7 Johns. Ch. 25. But 
a contract not to prefer a bill to redeem within a limited time is good. 
Such a contract, however, with a further stipulation that at the expiration 
of the time stipulated, there should be a foreclosure, unless the debts were 
paid, is void, or at least voidable: Daniels v. Mowry, 1 R. I. 151. See, 
however. Stover v. Bounds, 1 Ohio St. 197. A Court of equity will re- 
strain a mortgagee from proceeding at law to sell the equity of redemption, 
or put him to his election either to proceed directly on his mortgage or to 
seek other property (where the rights of creditors do not interfere), or the 
person of the debtor for the satisfaction of the debt : Tice v. Annin, 2 
John. Ch. 125. As a general rule, no person can come into a Court of 
equity for a redemption, unless he is entitled to the estate of the mort- 
gagor, or claims a subsisting interest under it : Grant v. Duane, 9 John. 
591 ; Welch v. Beers, 8 Allen (Mass.) 151 ; Gage v. Brewster, 31 N. Y. 
218. 

As to the right of redeihption by the mortgagor, his executors, adminis- 
trators, heirs and assigns, see Smith v. Manning's Ex'rs., 9 Mass. 422 ; 
Wilkins v. Sears, 4 Monr. 347 ; Douglas v. Sherman, 2 Paige 358 ; Skinner 
V. Miller, 5 Litt. 85 ; Bell v. Mayor of New York, 10 Paige 49 ; Beach v. 
Cooke, 28 N. Y. 508 ; Merriam v. Barton, 14 Verm. 501 ; Sheldon v. 
Bird, 2 Root 509 ; ^Craik ». Clark, 2 Hay. 22 ; Farrell v. Parlier, 50 111. 
274. By judgment creditors, see Hitt v. Holliday, 2 Litt. 332 ; Dabney v. 
Green, 4 Hen. & Munf. 101 ; Bigelow v. Willson, 1 Pickering 485^ and by 
subsequent encumbrancers, see Burnet v. Denniston, 5 John. Ch. 35 ; 
Cooper V, Martin, 1 Dana 25 5 Brown v. Worcester Bank, 8 Mete. 47 ; Watt 
V. Watt, 2 Barb. Ch. 371 ; McHenry v. Cooper, 27 Iowa 137 ; Johnson v. 
Harmon, 19 Id. 56. See also, Pearce v. Morris, L. R. 8 Eq. 217 ; and 
the right of a subsequent mortgagee to pay off a debt secured by a prior 
mortgage, is not affected by an agreement by the parties to such mortgage 
for a higher rate of interest than that specified in the mortgage : Gardner 
V. Emerson, 40 111. 296. 

He who redeems must pay the whole debt: Adams v. Brown, 7 Cush. 
220 •, Knowles v. Rablin, 20 Iowa 101 ; though the debt secured, or part 
of it, has become separated from the mortgage by becoming the property 
of a different person : Johnson v. Candagc, 31 Maine 28 ; or has become 
barred by the statute : Balch v. Onion, 4 Cush. 559. 



PERFECT AND IMPERFECT MORTGAGES. 261 

the estate ; it passes in the same course of devolution ; it 
may be devised, settled, or conveyed in the same way ; 
or may be transferred to a new claimant by mere length 
of enjoyment, (w) And the parties making title by these 
or any other means to the mortgagor's estate, have the 
same right with himself to sue for redemption. If there 
be several persons all claiming under the mortgagor, they 
will be entitled to redeem successively according to their 
priorities. Where the mortgagor's estate has altogether 
determined, and the only claim is in the lord by escheat, 
a different question arises; for escheat .is a mere incident 
of the law of tenure, and that law, as we have already 
seen, does not apply to equitable estates, (o) In accord- 
ance with this principle, the rule appears to be, that if the 
mortgage be in fee, so that the whole estate is transferred 
to the mortgagee, and nothing remains in the mortgagor 
*which can escheat at law, the lord is not entitled ; p^-. -. . -. 
but if the mortgage be for a term only, so that a 
reversion is left which may escheat at law, the incidental 
equity will pass with it. (oo) 

Another result of the principle which treats the equity 
of redemption as a continuance of the old estate, is that 
so long as the mortgagor is left in possession, he is con- 
sidered to hold in respect of his ownership.^ The ordi- 

(n) Cholmondely r. Clinton, 4 Bligh, 0. S. 1 ; 3 & 4 Wm. 4, c 27, s. 24. 

(o) Supra. 

{oo) Burgess v. Wheate, 1 Eden 177 ; Downe r. Morris, 3 Hare 394. 

^ As between the mortgagor and third persons, the mortgagor is to be 
considered as possessed of the freehold : Wilkins v. French, 20 Maine 111 ; 
Ellison V. Daniels, 11 N. H. 274 ; Wellington v. Gale, 7 Pick. 159; Groton 
V. Roxborough, 6 Mass, 50 ; Hitchcock v. Harrington, 6 John. 295 ; White 
p. Whitney, 3 Met. 81 ; Norwich v. Hubbard, 22 Conn. 587 ; Whitney v. 
French, 25 Verm. 663 ; Johnson v. Brown, 11 Foster 405; Carpenter ». 
Bowen, 42 Miss. 28 ; Woods v. Hilderbrand, 46 Mo. 284. A conveyance 



262 ADAMS's DOCTRINE OF EQUITY. 

nary practice now is, that he should be so left in possession, 
and that the mortgagee should receive regular payments 

of the land by the mortgagee, before entry, without a transfer of the debt, 
passes no interest or title in the land: Smith v. Smith, 15 N. H. 55. A 
parol assignment of a mortgage, though endorsed on the mortgage deed, 
and delivered and recorded with it, will not support a writ of entry by 
the assignee to foreclose the mortgage : Adams v. Parker, 12 Gray (Mass.) 
53. And in Pennsylvania, it has never been understood that such privity 
exists as that the mortgagee can compel the tenant of the mortgagor to 
pay him the rent whether the lease was executed before or after the mort- 
gage : Myers v. White, 1 Rawle 355. In New York, it has been held that the 
mortgagee has no right to the freehold, or to anything more than a bare 
possession, even as between himself and the mortgagor : Runyan v. Mer- 
sereau, 11 John. 534; Astor u. Miller, 2 Paige 68. See Hughes v. Ed- 
wards, 9 Wheat. 499; Tucker v. Keeler, 4 Verm. 161 ; Northampton Paper 
Mills V. Ames, 8 Metcalf 1 ; Smith v. Moore, 11 N. H. 55 ; Frothingham v. 
McKusick, 24 Maine 403 ; Oovell v. Dolloff, 31 Id. 104 ; Henshaw v. 
Wells, 9 Humph. 568 ; 4 Kent Com. 160. A mortgagee has no title, only 
alien: Jackson ». Lodge, 36 Cal. 28. Fletcher v. Holmes, 32 Ind. 497; 
Williams v. Beard, 1 S. C. 309 ; compare Mack v. Wetzlar, 39 Cal. 247. 
The contrary doctrine is held in Tennessee: Carter v. Taylor, 3 Head 30. 
In most of the United States, an equity of redemption is subject to dower, 
and liable to sale on execution. See 4 Kent Com. 161 ; though see Otley 
V. Haviland, 36 Miss. 19 ; Decker v. Hall, 1 Edm. (N. Y.) Sel. Cas. 279. See 
also, Hitchcock v. Merrick, 18 Wis. 357 ; Williams v. To wnshend, 31 N. Y. 41 1. 

Though a mortgagor in possession is thus treated in most respects as 
owner, yet he may be restrained by injunction from such acts of waste as 
will impair the value of the security : Cooper v. Davis, 15 Conn. 556 ; 
Brady v. Waldron, 2 John. Ch. 148. Or an action will lie : Van Pelt v. 
McGraw, 4 Comst. 110. See Langdon v. Paul, 22 Verm. 205 ; though see 
4 Kent Com. 161. 

The owner of the equity of redemption is liable for the taxes, before 
possession by the mortgagee. Hence, if he buys at a sale of the land for 
taxes, it will be considered merely a form of payment, and he will acquire 
no greater title than he had before : Frye v. Bank of Illinois, 11 111. 367 ; 
Ralston v. Hughes, 13 Id. 469. The payment of taxes by the mortgagor 
is to be credited in satisfaction of interest and not of principal : Cook v. 
Smith, 1 Vroom (N. J.) 387. 

In Maine, where mortgaged lands are taxed in the name of the mort- 
gagee, no title passes on a sale therefor : Coombs v. Warren, 34 Maine 89. 

A mortgagee not having been in possession recovering in ejectment 
against an occupant, cannot recover for mesne profits prior to his entry 



PERFECT AND IMPERFECT MORTGAGES. 263 

of interest, and should be entitled to call for his princi- 
pal at six months' notice. If there be an express agree- 
ment that the mortgagor shall have possession for a 
specified period, he is a termor for that period at law ; if 
there be no express agreement, or if he continue to hold 
after determination of the specified period, he is at law 
merely an occupant by permission, and may be ejected at 
any moment by the mortgagee. So long, however, as the 
mortgagee does not exert his power, the mortgagor is con- 
sidered in equity to hold as owner, and is entitled to the 
rents in that character. He cannot, therefore, be made 
accountable for bygone rents, (jt?)^ But if the security be 
insufficient he may be restrained, at the instance of the 
mortgagee, from cutting timber on the mortgaged pre- 
mises. (§') If the possession of the mortgagor continue 
for twenty years, the mortgagee may under the circum- 
stances be altogether barred of his right. The effect of 
such possession, under the old law, without demand of 
possession by the mortgagee, or receipt or demand of 
principal or interest, was to raise a presumption that the 
debt was satisfied. And by the present law it is ex- 
pressly declared, that a mortgagee out of possession shall 
not proceed, either at law or in equity, to recover the 
land, except within twenty years after he last had posses- 

{p) Ex parte Wilson, 2 Vea. & B. 252. 
(?) King V. Smith, 2 Hare 239. 

under the judgment in ejectment: Litchfield v. Ready, 5 Exch. 939. Nor, 
prior to a judgment in ejectment, or entry, can he maintain trespass : 
Turner v. Cameron's, &c., Co. 5 Exch, 932. See Northampton Paper Mills 
». Ames, 8 Met. 1. 

^ The mortgagor may authorize a second mortgagee to collect the rents, 
and apply them as payments on his mortgage, and the court will not re- 
strain him, on application of the first mortgagee, even after the filing of a 
bill for foreclosure : Best v. Schermier, 2 Halst. Ch. 154. 



264 ADAMS's DOCTRINE OF EQUITY. 

r*-( 1 t;-j sio^? *<^^ after the last payment of any principal 
or interest, (r)^ The same principle which treats 
the mortgagor's equity as the actual ownership, neces- 
sarily involves the conclusion, that the mortgagee's legal 
estate is e converso a mere pledge for repayment. 

In some sense, therefore, the mortgagee is treated as 
a trustee for the mortgagor, or rather he is liable to he 

(r) Christophers v. Sparke, 2 J. & W. 223 ; 3 & 4 Wm. 4, c. 27, ss. 2, 3 ; 
7 Wm. 4 & 1 Vict. c. 28 ; 3 & 4 Wm. 4, c. 42, s. 3. 

^ The general rule is, that there may be redemption within twenty- 
years ; but upon equitable circumstances it may be allowed after a much 
longer time : Ross v. Norwell, 1 Wash. ( Va.) 19. The possession to bar the 
equity of redemption must be actual, quiet and uninterrupted possession for 
twenty years, or a period of time sufficient to toll the right of entry at law : 
Moore v. Cable, 1 Johns. Ch. 385 ; Demarest v. Wynkoop, 3 Id. 129 ; Slee 
V. Manhattan Co., 1 Paige 48 ; Fenwick v. Macey, 1 Dana 279 ; Morgan v. 
Morgan, 10 Geo. 297 ; Cromwell v. Bank of Pittsburgh, 2 Wallace, Jr. 
569 ; Blithe v. Dwinal, 35 Maine 556. But so long as the mortgagee re- 
cognises the mortgage in any way, the presumption will not begin to run : 
Morgan v. Morgan, ut supr. It is not so much the possession, as the na- 
ture of the possession, which operates in equity as a bar to redemption. 
Time does not begin to run against the right to redeem so long as the 
mortgagee continues to hold as such : Richmond v. Aiken, 25 Verm. 324. 
Irv a suit by the mortgagor to redeem, the Statute of Limitations will not 
avail the mortgagee, unless he has been in actual possession of the land. 
In Missouri, payment of taxes on wild land is not equivalent to posses- 
sion : Bollinger v. Chouteau, 20 Mo. 89. So where a mortgage was given 
on wild land, of which neither party was in possession, there being evi- 
dence that the debts were unpaid, the lapse of thirty years was held no bar 
to a foreclosure : Chouteau v. Burlando, 20 Mo. 482. 

In some of the states, fifteen years' possession, where no statute disabili- 
ties or special circumstances equivalent thereto exist, will bar an equity 
of redemption : Skinner v. Smith, 1 Day 124; Crittenden v. Brainard, 2 
Root, 485 ; Richmond v. Aiken, 25 Verm. 324 ; see Robinson v. Fife, 3 Ohio 
N. S. 551. 

On the other hand, after the lapse of twenty years, the mortgagor being 
in possession and no interest paid, there is a presumption of satisfaction of 
the mortgage debt : Boyd v. Harris, 2 Md. Ch. 210 ; Roberts v. Welch, 8 
Ired. £q. 287 ; Ayres v. Waite, 10 Cush. 72 ; Cheever v. Perley, 11 Allen 
584. Otherwise where the possession has been in the mortgagee : Crooker 
a. Jewell, 31 Maine 306. See Martin v. Jackson, 27 Penn. St. 504. 



PERFECT AND IMPERFECT MORTGAGES. 265 

made a trustee by payment of his claim. But nothing 
short of payment can affect his right. He is not bound 
to reconvey on a deposit of the money in Court, however 
inconvenient his refusal may prove ; nor is he even bound 
to allow an inspection of the title deeds until the money 
is actually in his hands, (s)^ And so long as the mortgage 
remains undischarged, he is entitled to settle and deal 
with it as his own, and if his so doing renders the re- 
demption more expensive, the mortgagor must neverthe- 
less defray the expense. (^) 

The parties to whom the mortgagee may transfer his 
interest, or who may otherwise make title to his estate, 
are of course bound by the same equity as himself; but 
if his estate has escheated, and redemption is asked 
against the lord, there appears to be some question 
whether the equity is binding. It has been contended 
that there is a difference in this respect between a trust 
and an equity of redemption, and that although the lord 
is not bound by a trust, unless he is party or privy to it, 
yet that he shall be bound by an equity of redemption, 
whether he were privy or not.(w)^ The distinction, how- 
ever, it would probably be difficult to sustain. 

(«) Brown v. Lockhart, 10 Sim. 421 ; Richards r, Platel, Cr. & P. 79 ; 
Postlethwaite v. Blythe, 2 Sw. 256. 

{t) Wetherell t>. Collins, 3 Madd. 255 ; Bartle v. Wilkins, 8 Sim. 238 ; 
Barry v. Wrey, 3 Buss. 465; Re Marrow, Cr. &, P. 142; Re Townsend, 2 
Ph. 348. 

(u) Burgess t?. Wheate, 1 Eden 177: Attorney-General v. Duke of Leeds, 
2 M. & K. 343. 

^ The renewal of a note secured by mortgage, is not such a payment as 
will discharge the mortgage unless so intended: Parkhurst r. Cummings, 
56 Me. 135 ; nor is it defeated or impaired by partial payments ; the mort- 
gage lien remains so long as the debt is unpaid : Chase v. Abbott, 20 Iowa 
154. Though see Smith v. Smith, 32 111. 198. Money paid to the mortgagee 
designed at the time to be applied as payment, will operate to extinguish 
the mortgage to that amount : Champney v. Coope, 32 X. Y. 543. 

* In most of the United States it is provided by statute that on the 



266 ADAMS's DOCTRINE OF EQUITY. 

r*llfi1 *The statutory remedy against escheat in the 
case of a trustee, has already been considered, 
under the subject of trusts. And we had, at the same 
time, occasion to notice the analogous remedies provided 
by another statute, in the event of lunacy or infancy 
of a trustee, and in the event of a trustee being out of 
the jurisdiction, of doubts as to survivorship or heirship, 
and of a refusal to convey when properly required. (i>) 
The provisions with respect to lunacy and infancy, are 
expressly made applicable to mortgages also. The appli- 
cability of the other provisions has been a subject of 
some discussion. But the doubts are now cleared up by a 
later statute, which after reciting the two former acts, 
provides for the case of a mortgagee who has died with- 
out having been in possession and to whose executor or 
administrator the mortgage-money has been paid, and 
expressly confines the operation of the former acts to 
that particular case, (w) The enactments of the statute 
referred to are that, "where any person seised of land 
by way of mortgage, shall have departed this life with- 
out having been in possession of such land, or in the re- 
ceipt of the rents and profits thereof, and the money due 
in respect of such mortgage shall have been or shall be 
paid to his executor or administrator, and the devisee or 
heir or other real representative, or any of the devisees or 
heirs, or real representatives, of such mortgagee shall be 
out of the jurisdiction, or not amenable to the process of 
the Court of Chancery, or it shall be uncertain, where 

(u) 3 & 4 Wm. 4, c. 23 •, 11 Geo. 4 & 1 Wm. 4, c. 60, supra. 
(w) 1 & 2 Vict. c. 69. 

escheat of land it shall be held upon the same trusts and under the same 
encumbrances as before : 4 Kent's Com, 425; 1 Greenleaf's Cruise 417; 
note to Hill on Trustees, 4th Am. ed. 78. 



PERPECT AND IMPERFECT MORTGAGES. 2G7 

there are several devisees or representatives who were 
joint tenants, which of them was the snrvivor, or it shall 
be uncertain whether any such devisee or heir or repre- 
sentative be living or dead, or if known to be dead, it 
shall not be known who was his heir, or where such 
mortgagee or any such devisee or heir, or representative 
shall have died without an heir, or if any such devisee or 
heir or representative shall neglect or refuse to convey 
such land for the space of twenty-eight *days next r-^^-, -. ^-i 
after a proper deed for making such conveyance 
shall have been tendered for his execution by, or by an 
agent duly authorized by, any person entitled to require 
the same, then and in every such case it shall be lawful 
for the Court of Chancery to direct any person whom such 
Court may think proper to appoint for that purpose, in 
the place of the devisee, heir, or representative (whether 
such devisee, heir, or representative shall or shall not 
have a beneficial interest in the money paid to the execu- 
tor or administrator as aforesaid), to convey such land in 
like manner as by the said first recited act, the said 
Court is empowered to appoint a person to convey in the 
cases therein mentioned in the place of a trustee or the 
heir of a trustee, and every such conveyance shall be as 
effectual as if such devisee or heir or representative had 
executed the same." And it is further enacted, that the 
provisions of this act shall embrace the same objects as 
they would have done if they had formed part of the 
said recited acts, and should not extend to the case 
of any person dying seised of any land by way of mort- 
gage other than such as are in such act expressly pro- 
vided for.(2r) 

(z) Re Goddard, 1 M. & K. 25 : Prendergast v. Eyre, LI. & G. 181 ; Kx 
parte Whitton, 1 K. 279-, Green v. Holden, 1 Bea. 207. 



268 ADAMS's DOCTRINE OF EQUITY. 

If the mortgagee is dissatisfied with the security for 
his debt, he may enforce payment by an action at law, or 
may take possession of the mortgaged estate ; or he may, 
if he choose, pursue both these remedies at the same time, 
and any other which his contract confers. For the right 
to do so is part of his security, and if the mortgagor is 
inconvenienced by its exercise, his proper remedy is pay- 
ment of the debt.(y)^ 

If the mortgagee takes possession of the estate, he is 
treated in equity as holding in respect of his security, 
and must deal with the estate in conformity with that 
character. He is bound therefore to keep the premises 
r*1 1 81 ^^ necessary *repair, but is not bound to spend 
more than is strictly necessary. He must account 
for all the moneys which he in fact has received, or which 
without wilful default he might have received, but is not 
bound to take the trouble of making the most of the 
property. He is entitled to receive any incidental benefit, 
provided it be of a pecuniary kind, and therefore appli- 
cable in liquidation of his debt ; but if it be not of that - 
character, as, for example, if it be the presentation to a 

(y) Schoole v. Sail, 1 Sch. & L. 176; Drummond v. Pigou, 2 M. & K. 
168 ; Lockhart v. Hardy, 9 Bea. 349. 



^ The mortgagee may enter or maintain ejectment : Hughes v. Edwards, 
9 Wheaton 489 ; Dunkley v. Van Buren, 3 John. Ch. 330 ; Galium v. 
Emanuel, 1 Ala. 22. See also Fluck v. Replogle, 13 Penn. St. 406 ; Smith 
V. Schuler, 12 S. & R. 240 ; Martin ». Jackson, 27 Penn. St. 504 ; Clay v. 
Wren, 34'Maine 187 ; Wilhelm v. Lee, 2 Md. Ch. 322 ; Brown v. Stewart, 
1 Id. 87; Wheeler v. Bates, 1 Foster (N. H.) 460; Youngman v. Elmira 
R. R., 65 Penn. St. 278 ; Allen v. Ranson, 44 Mo. 263. See, in Vermont, 
under the statute of that state. Pierce v. Brown, 24 Verm. 165. The 
mortgagee is entitled to pursue all his remedies at once : Brown v. Stewart, 
ut sup. A mere entry for a particular purpose will not, however, be deemed 
to be a taking possession : Great Falls Co. v. Worster, 15 N. H. 412. 



PERFECT AND IMPERFECT MORTGAGES. 



269 ' 



vacant living, the mortgagor must have it as the real 
owner, (0)^ 

(2) Mackensie r. Robinson, 3 Atk. 559. 

^ A mortgagee in possession is accountable for the profits really made, 
and no further, except in case of gross negligence : Bainbridge v. Owen, 2 
J. J. Marsh 465 ; Van Buren v. Olmstead, 5 Paige 9 ; Bell v. The Mayor, 
&c., of New York, 10 Paige 49 ; Strbng v. Blanchard, 4 Allen 538 ; An- 
thony V. Rogers, 20 Mo. 281 ; and is not, in general, chargeable with interest 
on rents: Breckenridge v. Brooks, 2 A. K. Marsh. 339. But see Shaeffer 
V. Chambers, 2 Halst. Ch. 548 ; Boston Iron Co. v. King, 2 Cush. 400; as 
to where rests will be allowed. See also Smith v. Pilkington, 1 De G., F. 
& J. 120. Rents received by a mortgagee should be applied to keep down 
the interest : Saunders v. Frost, 5 Pickering 260 ; McConnel v. Holobush, 
11 111. 61 ; Moore v. Cable, 1 John. Ch. 385 -, Bell v. New York, 10 Paige 
49 ; Rawling v. Stewart, 1 Bland 22. Then to the payment of the prin- 
cipal : Mahone v. Williams, 39 Ala. 202. But a mortgagee is not entitled 
to compensation for his trouble in managing the estate, whether the parties 
have agreed to make such allowance or not : Breckenridge v. Brooks, 2 A. 
K. Marsh. 339. The only repairs made by the mortgagee, without the 
mortgagor's consent, which will be allowed to the mortgagor, are strictly 
necessary repairs. Beneficial expenditures, if unnecessary, will not be 
allowed : Quinn v. Brittain, 1 Hofi". Ch. 353 ; Hagthorp v. Hook, 1 Gill & 
J. 270; Lowndes v. Chisolm, 2 McCord Ch. 455; McConnel v. Holobush, 
11 111. 61 ; Boston Iron Co. v. King, 2 Cush. 400; Hidden t?. Jordan, 32 
Cal. 397. Taxes will be allowed: Goodrich v. Friedersdorfi", 27 Ind. 308. 
W^ith few exceptions, it is a general rule in Chancery that a mortgagee in 
possession is not entitled to any allowance for new improvements erected 
on the premises : Dougherty v. McColgan, 6 Gill & J. 275. See Boston 
Iron Co. t'. King, ut sup.; Harper's Appeal, 64 Penn. St. 315. Where a 
mortgagee insures, without contract, and the loss is paid him, it is not to 
be deducted from his charges for repairs : White v. Brown, 2 Cush. 412 ; 
Garden v. Ingram, 23 L. J. Ch. 478. On the other hand, as the mortgag6r 
is not bound to insure, the mortgagee cannot charge him with premiums : 
Dobson V. Land, 8 Hare 216. 

A mortgagee by taking possession, assumes the duty of treating the pro- 
perty as a provident owner would treat it : Shaeffer v. Chambers, 2 Halst. 
Ch. 548. If it be a farm, for instance, he is not at liberty to let it lie un- 
tilled, because the house on it, or the house and farm together, were not 
rented, but must keep it in good ordinary repair, and is bound to good or- 
dinary husbandry : Shaeffer v. Chambers, ut sup. And he will be charged 
with the rent he might have obtained for it, although by cultivating it 



^ 270 



ADAMS S DOCTRINE OF EQUITY. 



In taking the account of a mortgagee in possession, 
where the rents have exceeded the interest on his mort- 
gage, a question occurs, whether he shall be charged with 
interest on the surplus rents. If he is not to be charged 
with such interest', the account is taken by ascertaining 
on the one hand th€ aggregate amount of principal and 
interest down to the period of redemption, and on the 
other hand the aggregate amount of rent, down to the 
same period, and striking a balance of the two accounts. 
If he is to be charged with interest, the account is taken 
by making rests from time to time, and striking a balance 
at each rest, so as to apply the surplus rents in gradual 
reduction of the principal debt, and in consequent dimi- 
nution of the subsequent interest. The effect of this 
course is equivalent to allowing interest throughout on 
the entire principal, and charging interest on the surplus 
rents. 

In order to authorize the rests, an express direction of 



himself he has actually sustained a loss : Sanders v. Wilson, 34 Verm. 321 ; 
and see Miller v. Lincoln, 6 Gray 556. 

So a mortgagee in possession of slaves is bound to exercise reasonable 
diligence in keeping them engaged in useful employments, so as not only 
to pay their expenses, but also to obtain a reasonable compensation for 
their labor : Bennett w. Butterworth, 12 How. U. S. 367. 

So, in general, a mortgagee of personalty in possession, after condition 
broken, is responsible for ordinary diligence, and liable for ordinary ne- 
glect. 

If the property is destroyed without fault of his, he cannot be held to 
account for it ; but he is accountable for the net profits before its destruc- 
tion: Covell V. DolloflF, 31 Maine 104. 

How the account of the rents and profits is to be taken, see Powell v. 
Williams, 14 Ala. 476 ; Shaeffer v. Chambers, 2 Halst. Ch. 548. 

A mortgagee in possession is liable to an action for waste : Givens v. Mc- 
Calmont, 4 Watts 460. He cannot be dispossessed by the holder of the 
legal title. Being in possession he is entitled to retain it until his mort- 
gage is satisfied: Sahler v. Signer, 44 Barb. (N. Y.) 606. 



PERFECT AND IMPERFECT MORTGAGES. 271 

the Court is necessary^ (<5f) and the primd facie presumption 
is against allowing them. For the mortgagee is not bound 
to take payments by instalments, and his possession is in 
consequence of the mortgagor's default. If, however, he 
take possession when no interest is in arrears, he is not 
compelled to do so by the mortgagor's default, and rests 
will be decreed against him. It is otherwise if interest is 
in *arrear at the time ; and he will not in that r-^-, -. q-. 
case become liable to account with rests until 
both principal and interest have been discharged. If he 
continue in possession after that time, annual rests will 
be decreed for the subsequent period. (^) 

The liability of a mortgagee in possession to account is 
confined to a period of twenty years, unless continued by 
his own acknowledgment. The rule formerly was, that if 
a mortgagee were in possession for twenty years, without 
keeping accounts or otherwise dealing with the property 
as mortgagee, a presumption arose that the equity was 
released. And by the present law it is expressly de- 
clared that the mortgagor out of possession shall not be 
entitled to redeem, except within twenty years after the 
mortgagee took possession, or after a written acknow- 
ledgment of his right, signed by the mortgagee, has been 
given to him or his agent, (c) 

The remedy of the mortgagee by taking possession is 
practically very inconvenient. Yet if the forfeiture by 
non-payment had been taken away, and not replaced by 
any substitute, it would have been the only one attainable 
under his security. In order to remedy this objection, 

(a) Webber v. Hunt, 1 Mad. 13. 

(6) Quarrell v. Beckford, 1 Mad. 269; Wilson v. Metcalf, 1 Rus. 530; 
Wilson V. Cluer, 3 Bea. 130 ; Horlock ». Smith, I Coll. 287. 

(c) Hodle V. Ilealey, G Mad. 181 ; Cholmondeley v. Clinton, 4 BI. 0. S. 
1 ; 3 & 4 Wm. 4, c. 27, s. 28, supra. 



272 ADAMS's DOCTRINE OF EQUITY. 

the mortgagee is allowed after forfeiture to file a bill 
praying foreclosure of the equity to redeem. A new day 
for payment is then fixed by decree, and if default be 
made, the mortgagor's right is destroyed. The fore- 
closure, however, ' may be opened and the right of re- 
demption revived, if the decree appear to have been un- 
fairly obtained, or if the mortgagee treat the loan as still 
continuing; as, for example, if he proceed against the 
mortgagor on bond or other collateral security. If he 
sell the estate, and thus render it impossible to reopen 
the foreclosure, he will be restrained from suing on the 
r*l 901 collateral securities, although the sale *may have 
been bond fide made for less than the amount 
due.(c?) 

The effect of foreclosure is also produced by the dis- 
missal of a redemption bill on default in payment, for 
the Court will not again interfere, but will leave the 
parties to their rights at law. 

It must be observed, that the right of the mortgagee 
on such a bill is a right merely to foreclose the equity, 
and does not extend to warrant a sale. For although a 
sale would be often more convenient than a foreclosure, 
yet it is not stipulated for by the contract, and the Court 
has no more authority to sell the mortgaged estate for 
payment of the debt, than to sell the mortgagor's other 
estates for the same purpose. If; however, the property 
mortgaged be a right of presentation to a church, (e) or 
a dry reversion, incapable of producing present profit, (/) 
the^mortgagee in entitled to a sale, is respect of the special 

(d) Tooke v. Hartley, 2 B. C. C. 125 ; Perry v. Barker, 8 Ves. 527 ; 13 
Ves. 198 ; Lockhart v. Hardy, 9 Bea. 349. 

(e) Mackensie v. Robinson, 3 Atk. 559. 
(/) How V. Vigues, 15 Viner's Abr. 475. 



PERFECT AND IMPERFECT MORTGAGES. 273 

character of the mortgaged property, and its incapacity of 
constituting, except by a sale, a practical security for the 
debt. And in cases where stock has been transferred by 
way of mortgage, the mortgagee is entitled by the custom 
of business to sell immediately on default, without the 
necessity of obtaining a decree. (^) In those cases also 
where there is a special supervening jurisdiction, and 
where the Court does not act in respect of the mortgage 
alone, a decree for sale may be obtained. If, for example, 
the mortgagor be dead, there is an independent jurisdiction 
to administer his assets, and therefore if the personalty be 
insufficient, the mortgaged estate may be sold by consent 
of the mortgagee, and the produce applied, first in dis- 
charge of the mortgage, and then in payment of the other 
debts, (^) or if the estate has *been vested in an j-*io-|-i 
infant, a sale may be directed as indispensable for 
his benefit, lest the estate should be foreclosed and lost.(z) 
In Ireland, and some of the American courts, a difierent 
rule prevails, and the mortgagee may in all cases require 
a sale.(^)^ If an express power of sale is given by the 

ig) Tucker v. Wilson, 1 P. W. 261. 

ih) Daniel v. Skipwith, 2 B. C. C. 155. 

( j) Mondey v. Mondey, 1 Ves. & B. 223 ; Brookfield v. Bradley, Jac. 
634 ; Davis v. Dowrding, 2 K. 245. 

(A:) 2 Story on Eq. Jur. s. 1025 ; [Brinkerhoff ». Thallhimer, 2 John. Ch. 
486 5 Mills V. Dennis, 3 Id. 369.] 

^ In England, by Stat. 15 & 16 Vict. c. 86, s. 48, the Court of Chancery 
is now empowered in a foreclosure suit, to direct a sale of the property at 
the request of either party; and recent statutes have regulated the mort- 
gagee's remedy by powers of sale. See Williams on Real Property 396. 
In some of the United States the remedy in equity obtains : 4 Kent's Com. 
181 ; in others the proceedings are regulated by statute : Williams on Real 
Property 395, note. 

In many of the states the ancient practice of procuring a strict fore- 
closure is not adopted: Nelson v. Carrington, 4 Munf. 332; Rodgers »_ 
Jones, 1 McCord's Ch. 221 ; Downing r. Palmateer, 1 Monr. 66; Pannelj 
18 



274 ADAMS's DOCTRINE OF EQUITY. 

mortgage, such a power forms an additional remedy for the 
mortgagee, and does not interfere with his right to fore- 
close.^ 

If the mortgagor become bankrupt, the position of the 
mortgagee as to foreclosure is changed. He loses the 
right, which he previously had, of enforcing payment as 
a general creditor, and retaining in the meantime his 
power to foreclose. For the principle of the Bankrupt 
Law, which aims at distributing a debtor's property among 

». Farmers' Bank, 7 Har. & J. 202 ; Humes v. Shelly, 1 Tenn. 79 ; Hord v. 
James, Id. 201 ; David v. Grahame, 2 Har. & G. 94. See Henderson v. 
Lowry, 5 Yerg. 240 ; Smith v. Bailey, 1 Shaw (Verm.) 163 ; Lockwood 
V. Lockwood, 1 Day 295 ; Baylies v. Bussey, 5 Greenleaf 153 ; Gilman 
V. Hidden, 5 N. H. 31 ; Erskine v. Townsend, 2 Mass. 493 ; 5 Ham. 
554. 

The practice in the New England states seems to be similar to that of 
the English Courts : Mix v. Hotchkiss, 14 Conn. 32 5 but see Gibson v. Bailey, 
9 N. H. 168 ; and, in North Carolina, see Spiller v. Spiller, 1 Hayw. 482 ; 
see, in Maine, Chamberlain v. Gardner, 38 Maine 548. In Pennsylvania 
a mortgage may be foreclosed by scire facias ; so in Illinois and in Mis- 
souri by petition and summons. It was held in Riley v. McCord, 24 
Missouri 265, that a mortgagee had still a right to come into equity, not- 
withstanding the remedy provided by statute ; and see Hall v. Hall, 46 
N.H. 240; McCumber v. Gilman, 13 111. 542. In Pennsylvania, however, 
the Courts have no equitable jurisdiction to compel the sale of the mort- 
gaged premises at the suit of the mortgagee ; the remedy is by scire facias 
under the statute : Ashhurst v. The Montour Iron Co., 35 Penn. St. 30 ; 
Bradley v. The Chester Valley R. R. Co., 36 Id. 141. 

1 Carradine v. O'Connor, 21 Ala. 573 ; Walton v. Cody, 1 Wis. 420. A 
power to mortgage includes a power to execute a mortgage containing a 
power to the mortgagee to sell the premises in default of payment, it being 
one of the usual and lawful remedies given to a mortgagee, known to the 
law and- regulated by statute: Wilson v. Troup, 7 John. Ch. 25; 2 Cowen 
195, s. c. See Russell v. Plaice, 18 Bea. 21. And a power to sell in a 
mortgage deed, on default of payment, is a power coupled with an interest, 
and does not die with the mortgagor : Bergen ». Bennett, 1 Caines Cas. 
in Eq. 1 ; Varnum r. Meserve, 8 Allen (Mass.) 158. A sale under a power in 
a mortgage must pursue strictly, as to time and place, the stipulation in the 
mortgage : Hall v. Towne, 45 111. 493. 



PERFECT AND IMPERFECT MORTGAGES. 275 

all his creditors, will not permit a creditor to keep back 
.part of that property, and at the same time to share in 
the distribution of the rest. The mortgagee therefore 
must elect between two courses. He must either relin- 
quish his security and prove for the whole debt ; or he 
must realize his security, and afterwards prove for so 
much of the debt as the produce is insufficient to discharge. 
And in order to effectuate this latter course, it is directed 
that the commissioner acting under the fiat, on being 
satisfied of the creditor's title as mortgagee, shall take an 
account of the moneys due ; shall cause the mortgaged 
premises to be sold, and the produce to be applied, first in 
payment of the expenses, and then in satisfaction of the 
claim ; and if the moneys produced shall be insufficient to 
satisfy it, shall admit the mortgagee as a creditor for the 
deficiency, and to receive dividends thereon. (/)^ 

In addition to regular or perfect mortgages, which 
*convey the legal estate to the mortgagee, and r-^^ oq-i 
specify a day of forfeiture at law, there are other 
securities of an analogous character, but defective in one 
or both of these respects. 

These imperfect securities are seven in number : viz., 
1. Mortgages of a trust or equity of redemption, and 

{I) General Order in Bankruptcy of 8th March, 1794 ; 1 Mont. & Ayrton'a 
Bankruptcy 243 ; Greenwood r. Taylor, 1 R. & M. 185 ; Mason v. Bogg, 2 
M. & C. 443 ; Davis v. Dowding, 2 K. 245. 

^ Where a mortgagor becomes bankrupt, and a deficiency of his property 
is apprehended, and a prior mortgagee obtains the appointment of a re- 
ceiver to collect the rents, such mortgagee acquires a lien upon the rents, 
and, upon motion, they maybe applied to the mortgage debt: Post*. 
Dorr, 4 Edw. Ch. 412. See, as to the appointment of a receiver, Cortleyeu 
r. Hathaway, 3 Stockt. 39 ; Finch v. Houghton, 19 Wis. 149 ; Hyman v. 
Kelly, 1 Nev. 179. A receiver cannot be appointed at the commencement 
of the foreclosure suit: Ibid. 



276 ADAMS's DOCTRINE OF EQUITY. 

equitable mortgages by imperfect conveyance, or by con- 
tract to convey ; 2. Equitable mortgages by deposit of 
title deeds unaccompanied by a written contract ; 3. Welsh 
mortgages ; 4. Trust deeds in the nature of mortgage ; 5. 
The equitable lien of a vendor or purchaser of real estate ; 
6. Equitable J*?. /a. and elegit; and 7. Judgment charges 
under 1 and 2 Vict. c. 110, s. 13 and 14. 

The first class of imperfect mortgages are, mortgages 
of a trust or equity of redemption. In a mortgage of 
this kind the legal estate is ex concessis outstanding in the 
trustee or prior encumbrancer, and cannot be transferred 
to the mortgagee. He is therefore disabled from obtain- 
ing possession at law, and is entitled in consequence of 
that disability, to have a receiver appointed in equity, by 
whom the rents of the estate may be received, and applied 
in satisfaction of his mortgage. A receiver, however, will 
not be appointed, if a prior legal encumbrancer is in pos- 
session, unless the applicant will pay off his demand. If 
the prior encumbrancer be not in possession, the appoint- 
ment may be made, without prejudice to his right of ap- 
plying for the possession. A legal mortgagee cannot have 
a receiver, but must take possession under his legal 
title, (m) 

It should be observed that where an equity of redemp- 
tion is the subject of mortgage, the mortgagor is bound to 
disclose the prior mortgage ; and that if he conceals it and 
represents the land as unencumbered, he is liable by statute 
to forfeit his equity, and to be ipso facto foreclosed in favor 
of the second mortgagee, (y^) By the same act it is 
r*12S1 ^^'^^^^^^ t^^^ i^ ^ person bound by judgment, 
statute or recognisance, borrow money on mort- 

[m) Berney v. Sewell, I Jac. & W. 627 ; Brookes v. Greathed, Id. 176. 
[n) 4 & 5 Wm. 3, c. 16 ; StaflFord v. Selby, 2 Vein. 589. 



PERFECT AND IMPERFECT MORTGAGES. 277 

gage, without giving notice thereof in writing, he must 
discharge the judgment, statute, or recognisance, within 
six months after requisition by the mortgagee, and that in 
default in so doing, he shall be ipso facto foreclosed. 

Mortgages of the kind just considered may be properly 
called "mortgages of an equity;" there are also other 
imperfect mortgages, which may be termed " equitable 
mortgages," consisting of mortgages by imperfect convey- 
ances, or by an uncompleted contract to convey. Mort>- 
gages of this latter class entitle the mortgagee to claim 
specific performance and the execution of a legal mort- 
gage. In the meantime, they stand on the same footing 
as mortgages of an equity, and entitle the mortgagee to a 
receiver of the rents .^ 

The second class of imperfect mortgages are equitable 
mortgages by deposit of- title deeds, unaccompanied by a 
written contract.^ 

^ A Court of equity will often pronounce that to be an equitable mort- 
gage, which at law would be considered a conditional sale, and if a con- 
veyance resolves itself into a security for the performance or non-perform- 
ance of any act, it is a mortgage, whatever be its form : Flagg v. Mann, 2 
Sum. 486. It has been held in several of the United States, that any 
agreement in writing to give a mortgage, or imperfect attemjffe to create a 
mortgage, or to appropriate specific property in discharge of a particular 
debt, will be treated in equity as a mortgage, or a specific lien, which will 
have precedence of subsequent judgment creditors: Read v. Simons, 2 
Dessaus. 552 5 Welsh v. Usher, 2 Hill Eq. 167 ; Dow ». Ker, 1 Spear Eq. 
414 ; In the matter of Ilowe, 1 Paige 125 ; Bank of Muskingum v. Car- 
penter, 7 Ohio 21 ; Lake v. Doud, 10 Ohio 415. See Brown v. Nickle, 6 
Penn. St. 390 ; Locke v. Palmer, 26 Ala. 312 ; note to Russel v. Russel, 1 
Lead. Cas. Eq. 541 ; Racouillat v. Sansevain, 32 Cal. 376. This is a ques- 
tion, however, which depends to some extent upon the policy of the re- 
cording acts. 

There can be no mortgage of property not yet in existence, at law, and 
in equity an instrument of such a character will be regarded as a mere 
contract, giving no right over the property when it is acquired, and so far 
as it entitles the mortgagee to specific performance, is subordinate to inter- 
vening liens : Otis v. Sill, 8 Barb. S. C. 102. 

* Equitable mortgages by deposit have been sustained in Rockwell v. 



278 ADAMS's DOCTRINE OF EQUITY. 

The primd facie effect of such deposit is, that, until 
payment, the debtor cannot get back his title deeds, and 
therefore cannot conveniently deal with the estate; and 
if the right conferred on the creditor had stopped here, it 
would not have been in the nature of a mortgage at all, 
but would have been very similar to a solicitor's lien, viz., 
a right to hold the deeds so as to enforce payment by em- 
barrassing the debtor, but unaccompanied by any charge 
on the estate. The attempt to carry the security beyond 
this limit, and to make such deposits a charge on the 
estate was seriously impeded by the enactment of the 
Statute of Frauds, that no interest in land shall be created 
otherwise than by writing; but it has been held that the 
fact of the deeds being delivered to the creditor, raises an 
implication of law, not only that they were to operate as 
a security for the debt, but that such security was to be 
r*124-l effectuated by a mortgage, (o) *The conclusion, 
however, (^ this latter point seems unsatisfac- 
tory; for although there may be a sufficient ground to 
presume that a security was meant, yet the deposit might 
effectuate that object by embarrassing the debtor without 
necessarily charging the land. The doctrine was several 
times commented on by Lord Eldon, who admitted that 

(o) Russel V. Russel, 1 B. 0. C. 269 ; Ex parte Whitbread, 19 Ves. 209 ; 
Ex parte Hooper, 1 Meriv. 7 ; Parker v. Housefield, 2 M. & K, 419. 

Hobby, 2 Sandf. Ch. 9 ; AVilliaras v. Stratton, 10 Smed. & M. 418 ; and see 
Welsh ». Usher, 2 Hill Eq. 170 ; Jarvis v. Butcher, 16 Wis. 307. In Penn- 
sylvania,, it has been decided that an equitable mortgage by delivery of 
title deeds, or otherwise by parol, is not valid : Shitz v. Dieffenbach, 3 
Penn. St. 233 ; Bowers v. Oyster, 3 Penna. R. 240; Thomas's Appeal, 30 
Penn. St. 378 ; see also as to Kentucky : Vanmeter v. McFaddin, B. Monr. 
435. See Edwards Ex'rs. v. Trumbull, 50 Penn. St. 509. So also, in 
Ohio : Probasco v. Johnson, 2 Disney 96. 

It seems such a mortgage would not be valid in Vermont, though the 
point was not decided : Bicknell v. Bicknell, 31 Verm. 498. 



PERFECT AND IMPERFECT MORTGAGES. 279 

it was established by precedent, but said that it ought 
never to have been so established. 

In conformity with this doctrine a mere delivery of 
deeds, by way of security, unaccompanied by any written 
contract, will constitute in equity a charge on the land. 
And by parity of reasoning, the security may be extended 
to future advances, if they are made under a parol agree- 
ment to that effect, although in the case of an ordinary 
mortgage, or of a contract for conveyance as distinct from 
deposit, a writing would be necessary under the Statute 
of Frauds. (^9) 

Mortgages of this kind are not unusual,- especially in 
the case of persons in trade where loans are required for 
a short period, and the parties are desirous of saving time 
and expense. 

Their essentials are, as we have already seen, that the 
deeds be delivered to the creditor, and that the delivery 
be by way of pledge, and not diverso intuitu} A delivery 
to a third person on behalf of the creditor would probably 
be sufficient if the intention were proved. But if the 
deeds are retained by the mortgagor a parol agreement 
to deposit them is ineffectual. (§') If a portion only of 
the deeds be delivered, it appears to be sufficient, provided 
the delivery be with the intention to create a security. 

But if part be delivered to one creditor, and part to 
another, there may be much difficulty in considering 
either of them as an equitable mortgagee, or as entitled 

{p) Ex parte Whitbread, 19 Ves. 209 ; Ex parte Hooper, 1 Meriv. 7. 
(g) Ex parte Coming, 9 Ves. 115; Ex parte Whitbread, 19 Ves. 209; 
Ex parte Coombe, 4 Madd. 249. 

^ The mere fact that the title deeds are in a bond-creditor's possession, 
is not sufficient evidence by itself of an equitable mortgage in his favor : 
Chapman v. Chapman, 13 Beav. 308. 



280 ADAMs's DOCTRINE OF EQUITY. 

to more than his right of detainer, (r)^ If the delivery 
r*1251 ^^ ^^^ strictly by way of ^pledge, but in order to 
the preparation of a regular mortgage, there 
seems to be additional difficulty in sustaining it as an 
equitable mortgage. For the implication arising out of 
the mere deposit, that such deposit itself was meant as a 
charge, is expressly negatived by the proved intent. And 
if that intent is specifically enforced by directing a mort- 
gage to be made, the direction will be based, not on an 
implication of law, but on express parol evidence, ad- 
mitted in contravention of the Statute of Frauds. The 
authorities, however, are in favor of the mortgagee's 
claim, (s) 

The effect of a mortgage by deposit is that the mort- 
gagee has a^n equitable charge on the land. He is not 
invested with the legal ownership; and for this reason he 
is entitled, like the mortgagee of an equity, to have a 
receiver appointed of the rents. His mortgage specifies 
no day of payment, and a doubt therefore has existed 
whether his proper remedy is by foreclosure or by a de- 
cree for sale. The decisions on this point are not uniform, 

(r) Ex parte Wetherell, 11 Ves. 401 ; Ex parte Pearsa, Buck 525; Ex 
parte Chippendale, 2 M. & A. 299. 

(*) Norris v. Wilkinson, 12 Ves. 192 ; Ex parte Bruce, 1 Rose 374 ; 
Hockley v. Bantock, 1 Russ. 141 ; Keys v. Williams, 3 Y. & C. 55. 

^ In Roberts v. Croft, 24 Beav. 223, the equitable mortgagor deposited 
with one creditor all the deeds except the last conveyance to himself, and 
this he subsequently placed with another person. It was held that the 
first creditor was entitled to priority, on the ground that title papers de- 
posited by way of mortgage need not necessarily show the mortgagor's 
title. In Daw v, Terrell, 33 Beav. 218, the deposit of deeds of two lots, 
and an order on the mortgagor's bankers for the deeds of a third, were 
held to constitute a good equitable mortgage as to the whole. The deeds of 
the third property had been deposited with the bankers by way of mort- 
gage, and, on payment, had been returned to the mortgagor. 



PERFECT AND IMPERFECT MORTGAGES. 281 

but their result appears to be that the implied contract is 
one for a legal mortgage, and therefore carries with it all 
the rights which a legal mortgage would confer, including 
the right of foreclosure. Whether he is bound to abide 
by that right, or may claim in the alternative a sale of 
the estate, seems to be still in doubt. (^)^ 

The third and fourth classes of imperfect mortgages 
are Welsh mortgages, and trusts deeds in the nature of 
mortgages. 

A Welsh mortgage is a conveyance of an estate re- 
deemable at any time on payment of principal and inter- 
est, and its chief imperfection is the want of a specified 
day of forfeiture. The consequence of this want is that 
the mortgagee's remedy is confined to perception of the 
rents, and *that he is not entitled to foreclosure r-^^-, q^,-. 
or sale, nor will his liability to account be deter- 
mined by the lapse of time, unless he has continued in 
possession for twenty years after the debt was fully paid 
and satisfied, (w)^ 

Trust deeds in the nature of mortgage are mere con- 
veyances to the creditor, on trust for the debtor until de- 
fault ; and after default, on trust to sell and to retain the 

[t) Pain V. Smith, 2 M. & K. 417 ; Parker ». Housefield, 2 M. &K. 419 ; 
Brocklehurst p. Jessop, 7 Sim. 438: Moores v. Choat, 8 Sim. 508, 515, 
523 ; Price v. Carver, 3 M. & C. 157, 161 ; Lister v. Turner, 5 Hare 281. 

(m) Yates r. Hambley, 2 Atk. 360 ; Fenwick v. Reed, 1 Meriv. 114 ; 
Teulon v. Curtis, Younge 610 ; Balfe v. Lord, 1 Conn. & L. 519. 

^ Sale and not foreclosure was held to be the remedy in Tuckley ». 
Thompson, 1 Johns. & H. 126 ; but Redmayne v. Forster, L. R. 2 Eq. 467, 
is the other way. 

' In Louisiana, the antichresis, •which resembles the Welsh mortgage, 
in that the creditor is entitled to take the rents and profits in discharge of 
his debt, but differs, in his being entitled to a decree of sale, is the form of 
pledge of real estate authorized by the Civil Code. See Livingston v. Story, 
11 Peters S. C. 351. 



282 ADAMS'S DOCTRINE OF EQUITY. 

debt out of the proceeds. The imperfection of these 
securities, like that of Welsh mortgages, consists in the 
want of any day of forfeiture, and in the consequent 
absence of a right to foreclosure. The estate never 
vests absolutely in the creditor, and he is placed rather 
in the position of a trustee, though to some extent for 
his own benefit, than in that of an independent mort- 
gagee, (t;) / 

The inconvenience resulting from the want of ability 
to foreclose, both in the case of Welsh mortgages, and 
in that of trust deeds, is very great ; and such securities 
are of comparatively unfrequent occurrence. 

The fifth class of imperfect mortgages is the equitable 
lien of a vendor or purchaser of real estate ^ 

The term lien, when accurately used, signifies a right 
to retain a personal chattel, until a debt due the person 
retaining is satisfied ; and it exists at common law in- 
dependently of liens by agreement or usage, in three 
cases, viz., 1. Where the person claiming the lien has, 
by his labor or expense, improved or altered the chattel; 
2. Where he is bound by law to receive the chattel or to 
perform the service in respect of which the lien is claimed ; 
and 3. Where his claim is for salvage, as on a rescue of 
goods from perils of the sea, or from capture by an 
enemy. 

The foundation of this right is the actual possession, 

and therefore, if the possession be abandoned, the lien 

is gone ; and if there be any agreement to postpone the 

r*1271 ^^^^^ ^^ payment, *the same eff*ect follows ; for it 

cannot be supposed that the creditor was intend- 

(») Ex parte Pettit, 2 Gl. & J. 47 ; Sampson v. Pattison, 1 Hare 533. 

* This equitable lien gives the vendor, at least at law, no right to detain 
the title deeds : Goode v. Burton, 1 Exch. 189. 



PERFECT ANI> IMPERFECT MORTGAGES. 283 

ed to detain the chattel during the whole period of post- 
ponement, [tv) There is also a right at law in the nature 
of lien, entitling the vendor af a chattel who has not sold 
on credit, and has not actually or constructively delivered 
it to a purchaser, to retain it in his possession until the 
whole price is paid,^ notwithstanding that by payment of 
a portion, the right of property may haA^e passed to the 
purchaser. The right, however, seems to be merely a 
right of detention, and not a right to rescind the contract, 
or to make up the deficiency by a resale ; and when the 
chattel has been delivered, the right is at an end.(:r) 

The equitable lien on a sale of realty is very different 
from a lien at law ; for it operates after the possession 
has been changed, and is available by way of charge, 
instead of detainer. 

The distinction may, perhaps, be traced to the same 
principle which prevails in regard to specific performance ; 
viz., that where the possession of a chattel has been 
parted with, the Courts of common law cannot compel 
its restoration, but can only give damages for its deten- 
tion, which could be equally well obtained in an action 
for its price. A right of lien, therefore, when the posses- 
sion has been parted with, would be a nullity at law ; and 
as damages area sufficient remedy for detention of chattels, 
there is no ground for equitable interference. But, on 
the other hand, where real estate is concerned, a specific 
decree is required, and will be made. 

[w) Smith's Merc. Law. 510, 518 ; Jarm. Byth. 3-13. 
[x) Ibid, 436-9, 457-63, 500-9. 

^ Or, if the sale is on credit, to exercise the well known right of stoppage 
in transitu. And the vendor may come into a Court of Equity, and ob- 
tain its aid to enforce this lien by an injunction : Schotsmana v. The Lau- 
cashire and Yorkshire R. R. Co., L. R. 2 Chan. Ap. 332. 



284 ADAMS's DOCTRINE OF EQUITY. 

Whatever be the origin of the distinction, its existence 
is clear. And it is an established principle of equity, 
that where a conveyance is made prematurely before pay- 
ment of the price, the money is a charge on the estate in 
the hands of the 'vendee ; and where the money is paid 
prematurely *before conveyance, it is, in like 
^ -^ manner, a charge on the estate in the hands of 
the vendor, (y)^ 

{y) Mackreth v. Symmons, 15 Ves. 329. [See Rose v. Watson, 10 House 
of Lords Cas. 672.] 

^ The subject of the equitable lien of the vendor for unpaid purchase- 
money will be found discussed in the notes to Mackreath v. Symmons, 1 
Lead. Cas. Eq. 235. " The true nature of this claim appears to be this : 
It had its origin in a country where lands were not liable, both during 
and after the life of the debtor for all personal obligations, indiscrimi- 
nately, includirig debts by simple contract ; and it seems to be an original 
and natural equity, that the creditor whose debt was the consideration of 
the land, should by virtue of that consideration be allowed to charge the 
land upon failure of personal assets. It is not a lien until a bill has been 
filed to assert it ; before that is done it is a mere equity or capacity to ac- 
quire a lien, and to have satisfaction of it. When a bill is filed it becomes 
a specific lien:" 1 Lead. Cas. Eq. 373. The states in the Union may, as 
to this subject, be divided into five classes : 

First, those in which the lien is recognised by judicial decision : such 
are 2^ew York — Staflford v. Van Rensselaer, 9 Cowen 316 ; Warren v. Fenn, 
28 Barb. 335 ; New Jersey— VanioTen ». Todd, 2 Green Ch. 397 ; Herbert 
V. Scofield, 1 Stockt. 492 ; Dudley v. Matlack, 1 McCart. 252 ; Indiana— 
Deibler ». Barwick, 4 Blackf. 339 ; McCarty v. Pruet, 4 Ind. 226 ; Cox v. 
Wood, 20 Id. 54; Ohio — Williams v. Roberts, 5 Ohio 35; Mississippi — 
Stewart et al. v. Ives et al., 1 Sm. & M. 197 ; Trotter v. Irwin, 27 Miss. 
772 ; Littlejohn v. Gordon, 32 Id. 235 ; Missouri — Marsh v. Turner, 4 Mo. 
253 ; Bledsoe v. Games, 30 Id. 448 ; Illinois — Dyer v. Martin, 4 Scam. 148 ; 
Trustees ». Wright, 11 111. 603; Mart/land — Moreton v. Harrison, 1 Bland. 
491 ; Carr ». Hobbs, 11 Md. 285 ; Bratt v. Bratt, 21 Id. 578 ; Minnesota— 
Selby V. Stanley, 4 Minn. 65 ; Tennessee — Eskridge v. McClure, 2 Yerg. 
84 ; Brown v. Vanlier, 7 Humph. 239 ; Alabama — Hall's Ex'rs. v. Click, 5 
Ala. 363 ; Burns v. Taylor, 23 Id. 255 ; California — Truebody v. Jacobson, 
2 CaL 269 ; Williams v. Young, 17 Id. 403 ; Burt v. Wilson, 28 Id. 632 ; 
Arkansas-~Fjng\ish v. Russell, Hemp. 35 ; Georgia — Mounce v. Byars, 16 
Georgia 469 ; Chance v. McWhorter,26 Id. 315 ; Florida — Woods v. Bailey, 



PERFECT AND IMPERFECT MORTGAGES. 285 

The lien thus attaching on the estate is obviously use- 
less by way of detainer, and can only be available by way 

3 Flor. 41 ; loica — Pierson v. David, 1 Iowa 23 ; Michigan — Sears v. Smith, 
2 Mich. 243 ; Converse v. Blumrich, 14 Id. 124 ; Texas — Pinchain v. Col- 
lard, 13 Texas 333 ; Glasscock v. Glasscock, 17 Id. 480. 

Second. Those states in which the lien is expressly recognised and main- 
tained by statute: Maryland — General Laws, Art. 16, § 130 •, loica — Re- 
vised Laws of 1860, page 653. 

Third. Those in which the lien is abolished or confined within narrow 
limits by statute : Virginia — ^where the vendor's lien is abolished unless 
expressly reserved in the conveyance : 2 Mat. Dig. 397 ; Yancey v. Mauck, 
15 Gratt. J^OO ; though it formerly existed : Tompkins v. Mitchell, 2 Rand. 
428 ; Kyles v. Tait, 6 Gratt. 44 ; Kentucky — where there is a statute to the 
same eflFect : Digest, vol. ii, 230 ; Gritton v. McDonald, 3 Mete. 252 ; Ver- 
mojit — where the Statute of 1851 abolishes the lien entirely. 

Fourth. Those states in which the lien has never been recognised by 
the courts : Pennsylvania — KaufiFelt v. Bower, 7 S. & R, 64 ; Hepburn v. 
Snyder, 3 Penn. St. 72 ; Zentmyer v. Mittower, 5 Id. 403 ; Hiester v. 
Green, 48 Id. 96 ; though a lien may be created by express charge in the 
conveyance : Heist v. Baker, 49 Penn. St. 9 ; North Carolina — Womble v. 
Battle, 3 Ired. Eq. 182 ; Henderson v. Burton, 3 Id. 259 ; Cameron v. 
Mason, 7 Id. 180 ; South Carolina — Wragg's Rep. v. Comp. Gen., 2 
Dessaus. 509 ; Maine — Phillbrook t*. Delano, 29 Maine 410 ; Massachusetts 
— Gilman v. Brown, 1 Mason 191 ; though see Wright v. Dame, 5 Mete. 503. 

Fifth. Those states in which the question seems yet to be undecided : 
New Hampshire — Arlin v. Brown, 44 N. H. 102 ; Connecticut — Watson v. 
Well, 5 Conn. 468 ; Dean v. Dean 6 Id. 285 ; Atwood v. Vincent, 17 Id. 
575 ; Delaware — Budd v. Basti, 1 Harrington 69. No vendor's lien exists 
in Kansas when a deed absolute on its face is given : Simpson v. Mun- 
dee, 3 Kansas 172; Brown v. Simpson, 4 Id. 76. 

In the United States Courts this lien is recognised : Bayley v. Green- 
leaf, 7 Wheat. 46 ; Chilton v. Braiden's Adm'x., 2 Black 458. 

As against creditors or purchasers, the existence of this lien is a point 
upon which the decisions are contradictory and conflicting. See Bayley 
V. Greenleaf, 7 Wheat. 46 ; Moore v. Holcombe, 3 Leigh 597 ; Harper v. 
Williams, 1 Dev. & Bat. Eq. 379 ; Roberts v. Rose et al., 2 Humph. 145 
Brown v. Vanlier et al., 7 Humph. 239 ; Repp et al. v. Repp, 12 Gill & J 
341 ; Duval V. Bibb, 4 Hen. & M. 113 ; Clark v. Hunt, 3 J. J. Marsh. 533 
Eubank v. Poston, 5 Monr. 285 ; Kyles r. Tait, 6 Gratt. 44 ; Kilpatrick r 
Kilpatrick, 23 Miss. (Cushm.) 124 ; Green v. Demos, 10 Humph. 371 
Webb V. Robinson, 14 Geo. 216 ; MacAlpine v. Burnett, 23 Texas 649 
Chance r. McWhorter, 26 Geo. 315 ; Selby v. Stanley, 4 Minn. 65. See 
note to Mackreth v. Symmons, supra. 



286 ADAMS's DOCTRINE OP EQUITY. 

of charge. It is treated, therefore, as a security in the 
nature of mortgage 5^ and the remedy under it is by suing 
in equity to have the estate resold, and the deficiency, if 
any, made good by the defendant ; or else to have the 
contract rescinded, retaining the deposit as forfeited, 
which is practically equivalent to a foreclosure of the 
charge. (0) 

The character of this lien as an enforceable charge, pro- 

{z) 1 Sag. V. & P. 427. 



The lien arises on the conveyance of an equitable, as well as a legal 
estate : Warren v. Fenn, 28 Barb. 335 ; Bledsoe v. Games, 30 Missouri 
448 ; 1 Lead. Gas. Eq. 363 ; Hill v. Grigsby, 32 Cal. 55. And on the sale 
of a term of years: Bratt v, Bratt, 21 Md. 578. In Burns v. Taylor, 23 
Ala. 255, it was said to apply to an exchange with the same force as to a 
sale for money ; and see Wickmen v. Robinson, 14 "Wis. 493. See also. 
Child v. Burton, 6 Bush 617 ; where a lien was held to have attached on 
other land exchanged by the vendee for the land sold. 

The lien of a vendor after conveyance is to be distinguished from the 
interest of the vendor under articles before conveyance. The former is a 
mere charge ; the latter is an estate. See, however, Hall v. Jones, 21 Md. 
439; and Haughwout p. Murphy, 7 C. E. Green 531. After conveyance 
the whole estate both legal and equitable passes to the vendee, and the 
vendor has a mere naked right to the purchase-money enforceable against 
the land. Before conveyance, however, and while there is a contract of 
sale only, the vendor has the legal estate in the land, and the vendee has 
the equitable interest, th« former being a trustee of the beneficial interest 
in the land for the latter ; the latter being a trustee of the purchase-money 
for the former. See Chapter on Conversion, post. This distinction has 
in many cases in this country been disregarded, and the interest of a vendor 
under articles or a title-bond treated as if it were the same as the equit- 
able lien for purchase-money after a conveyance has been executed. Such, 
howevfer, is by no means the case, and the distinction above stated should 
always be kept in view. 

The lien of the vendee who has prematurely paid his purchase-money 
has been recognised in this country : Wickman v. Robinson, 14 Wis. 493. 
And as to this lien, see Rose v. Watson, 10 House of Lords Cas. 672. 

^ It is contended by the author of the American note to Mackreth v. 
Symmons (supra), that this lien does not partake of the nature of a mort- 
gage : 1 Lead. Cas. Eq. 373 ; and ees ShoflFner v. Fogleman, I Wins. (N. C.) 
No. 2 (Eq.) 12. 



PERFECT AND IMPERFECT MORTGAGES. 287 

tects it from being lost by postponing the day of pay- 
ment.^ For such postponement, though inconsistent with a 
right of detainer, is not inconsistent with a right of charge. 
Nor will it be lost by taking a bill, note, or bond, as 
a security for the consideration, although such security 
be payable at a future day.(«)^ It is different if the 

(a) Winter v. Ansoo, 3 Rues. 488. 

* Whether the lien is barred when the debt is barred by the Statute of 
Limitations seems not be settled. See 1 Lead. Cas. Eq. 370 ; also Little- 
john V. Gordon, 32 Miss. 235. 

* It is incumbent upon the party contesting the vendor's lien to show 
that it has been relinquished ; and the acceptance of personal security, is 
no evidence of such relinquishment: Garson v. Green, I John. Ch. 308 ; 
Tompkins v. Mitchell, 2 Rand, 428 ; Campbell v. Baldwin, 2 Humph, 248 ; 
Gilman r. Brown, 1 Mason 192; Tiernan r. Beam, 2 Ham, 383, See also, 
Evans v. Goodlet, I Blackf. 246 ; Cox v. Fenwick, 3 Bibb 183 ; White v. 
Williams, 1 Paige 502; Thornton v. Knox's Ex'rs., 6 B. Monr. 74 ; Ross 
r. Whitson, 6 Yerg. 59 ; Mims v. Macon, 3 Kelly 333. See note to Mack- 
reth r. Symmons, ut sup,, where it is stated to be the result of the Ameri- 
can authorities, " that the implied lien will be sustained wherever the 
vendor has taken the personal security of the vendee only, by whatever 
kind of instrument it be manifested, and therefore that any note, bond, or 
covenant, given by the vendee alone, will be considered as intended only 
to countervail the receipt for the purchase-money contained in the deed, or 
to show the time and manner in which the payment is to be made, unless 
there is an express agreement between the parties to waive the equitable 
lien ; and on the other hand, that the lien will be considered as waived 
whenever any distinct and independent security is taken, whether by 
mortgage of other land, or pledge of goods, or personal responsibility of 
a third person (as the endorsement of the vendee's note), and also when 
the security is taken upon the land, either for the whole or a part of the 
unpaid purchase-money, unless there is an express agreement that the 
implied lien shall be retained." See also, Truebody v. Jacobson, 2 Cal. 
269; Griffin v. Blanchar, 17 Id. 70; Delassas v. Posten, 19 Miss. 425; 
Tiernan ». Thurman, 14 B. Monr. 277; Hare v. Deusen, 32 Barb. 92; 
Parker County », Sewell, 24 Tex, 238; Harris r, Harlan, 14 Ind. 439; 
Selby V. Stanley, 4 Minn. 65 ; Daughaday r. Paine, 6 Id. 443 ; Hummer ». 
Schott, 21 Md. 307; Fogg ©.Rogers, 2 Cold. (Tenn.) 290; Schwartz ». 
Stein, 29 Md. 112; Hadley v. Pickett, 25 Ind, 450; Porter v. Dubuque, 20 
Iowa 440 ; McGonigal v. Plummer, 30 Md. 422 ; Sullivan v. Ferguson, 40 



288 ADAMS's DOCTRINE OF EQUITY. 

security be itself the consideration, as, for example, if the 
conveyance profess to be in consideration of a covenant 
to pay, and not in consideration of actual payment. ($) 
If, however, the security is inconsistent with a continu- 
ance of the charge, the lien is at an end ; as, for example, 
if a mortgage be made on the same estate for part of the 
price, or on part of the estate for the whole price ; for 
either of these securities contradicts the notion that the 
whole price is to be a charge on the whole estate, (c) The 
question whether in each particular case the lien is re- 
linquished, can only be determined by the special cir- 
cumstances. If the nature of the thing bought, and of 
the consideration for it, exclude the supposition that the 
lien was relied on, that circumstance will have weight in 
r*l 9Q1 ^^^ decision ; or if a security be taken of *a cha- 
racter and value which show that credit was 
exclusively given to that security, that fact also will have 
its weight. But the question is always one of intention, 
to be collected from circumstances which have taken 
place. (^)^ 

(6) Clarke v. Royle, 3 Sim. 499 ; Parrott v. Sweetland, 3 M. & K. 655 ; 
Bucknell v. Pocknell, 13 Sim. 406. 

(c) Capper v. Spottiswoode, Taml. 21 ; Bond v. Kent, 2 Vern. 281. 

{d) Nairn v. Prowse, 6 Ves. 752 ; Mackreth v. Symmons, 15 Id. 329 ; 
Winter v. Anson, 3 Russ. 488 ; 3 Sug. Y. & P. c. xviii. 

Mo. 79 ; Yaryan v. Shriner, 26 Ind. 364; Armstrong ». Ross, 20 N. J. Eq. 
109. See, however, Burrus v. Roulhac, 2 Bush (Ky.) 39; where it was 
held that the acceptance of a guaranteed note did not waive the lien ; 
and see also, Anketel v. Converse, 17 Ohio 11 ; where a purchase-money 
mortgage was held not to extinguish the lien. Also Dodge v. Evans, 43 
Miss. 570; Fonda v. Jones, 42 Miss. 792; Sanders w. McAfee, 41 Ga. 684; 
Burette v. Briggs, 47 Mo. 356 ; Carrico v. Farmers' Bank, 33 Md. 235. 

* The lien may be waived by conduct showing that intention : see Clark 
V. Hunt, 3 J. J. Marsh. 553. In some of the states the lien may be en- 
forced without a judgment: High and Wife v. Batte, 10 Yerg. 186 ; Gal- 



PERFECT AND IMPERFECT MORTGAGES. 289 

The sixth and seventh classes of imperfect mortgages, 
are those of equitable fieri facias and elegit, and judgment 
charges under 1 & 2 Vict. c. 110, ss. 13, 14. 

The writs of fieri facias and elegit are writs of execu- 
tion after judgment, respectively requiring the sheriff to 
levy the debt out of the debtor's personal or real estate. 
And being writs issued out of the common law Courts, 
they are confined in their operation to legal interests. If 
the debtor be entitled to a trust or equity of redemption, 
his interest is exempt from execution at law, and must be. 
attached, if at all, by suit in equity. A partial exception 
to this rule was introduced by the Statute of Frauds, 
giving legal execution against the real estate of which any 
person was seise.d in trust for the debtor at the time of 
execution sued out. But the enactment did not extend 
to chattels real, to trusts under which the debtor has not 
the whole interest, to equities of redemption, or to any 
equitable interest which had been parted with before exe- 
cution sued out.(e) 

The remedy afforded to the creditor in equity, when 
either of these writs has been issued, is termed an equi- 
table fieri facias, or elegit, according as it is sought against 
personal or real estate. 

(e) 29 Car. 2, c. 2, s. 10; Forth p. Duke of Norfolk, 4 Mad. 503. 

loway V. Hamilton's Heirs, 1 Dana 576 ; Richardson w. Baker, 5 J. J. 
Marsh. 323. 

As to whether this lien passes, on the assignment of the debt for the 
unpaid purchase-money, to the assignee, the authorities are in conflict in 
the different states : see the note toMackreth v. Symmons, ut supr., where 
the matter is fully discussed. And see Fisher v. Johnson, 5 Indiana 492 ; 
Kern v. Hazlerigg, 11 Id. 443 ; Keith v. Horner, 32 111. 524 ; Simpson v. 
Montgomery, 25 Ark. 365; Wells v. Morrow, 38 Ala. 125; Lindsey ». 
Bates, 42 Miss. 397 ; Carter v. Sims, 2 Heisk. (Tenn.) 166. 
19 



290 ADAMS's DOCPRINE OF EQUITY. 

Its modus operandi is of a threefold character, first by 
injunction against setting up an outstanding estate in bar 
of execution at law ; secondly, by appointment of a re- 
ceiver; and, thirdly, in the case of an equity of redemp- 
tion, by permitting the judgment creditor to redeem. But 
it is strictly confined to its legitimate object, viz., the im- 
r*l^m P^^i^S *^^ t^® equitable interest the liability 
which would attach at law on a corresponding 
legal interest. In accordance with this principle, no relief 
can be obtained in equity until the title is perfected at law 
by suing out the writ ; but it is not necessary that the 
writ should be returned. There is an apparent exception 
to this rule where the judgment creditor is seeking to re- 
deem a mortgage, or where the debtor is dead, and 
administration of his assets is wanted. In the former case, 
the Court, finding the creditor in a condition to acquire a 
power over the estate by suing out the writ, acts, as it 
does in all similar causes, and enables him to redeem other 
encumbrances ; in the latter, if under any circumstances 
the estate is to be sold, it pays off the judgment, because 
it will not sell subject to the debt, and it cannot otherwise 
make a title to the estate. In accordance with the same 
principle, a sale will not be decreed on an equitable ekffit, 
' unless a special jurisdiction supervenes, e. ff., in a suit to 
administer the debtor's assets ; but the relief is confined 
to perception of rents. Nor will a decree be made for 
charging property by way of equitable ^eri facias or ekpt, 
if the property be of a kind exempt from execution at 
law, e. g., stock or shares ; nor for charging (independently 
of the late statute) more than the moiety of a trust in 
land ; but it is otherwise with respect to an equity of re- 
demption, for the judgment creditor is obliged to redeem 



PERFECT AND IMPERFECT MORTGAGES. 291 

the entirety, and cannot be afterwards deprived of it 
without payment of his demand. (/) 

The rights of a judgment creditor, except as against 
purchasers and mortgagees without notice, are much in- 
creased by a late statute. The operation of i\\.Q fieri facias 
and elegit at law is extended, and a new right is intro- 
duced by way of equitable charge, enforceable in like 
manner with a charge by contract. It is enacted by the 
same statute, that decrees and orders of Courts of equity, 
and all rules *of Courts of law and orders in r*iQi-i 
bankruptcy and lunacy for payment of money, 
shall have the effect of judgments. And that judgments, 
rules, and orders of certain inferior Courts, may be re- 
moved into a superior Court, and acted on as a judgment 
thereof; but not so as to operate against purchasers or 
creditors until delivery of the writ.(^) 

The operation of the elegit at law is extended, so as te 
bind the entirety, instead of a moiety of the debtor's land, 
to include lands of copyhold and customary tenure, lands 
over which the debtor has a sole disposing power exer- 
cisable for his own benefit, and lands of which the debtor, 
or any person in trust for him, is seised or possessed at 
the time of entering the judgment. It appears, therefore, 
to include leaseholds and trust estates, belonging to the 
debtor at the date of the judgment, and to render his 
alienation of the one before the delivery of the writ, 
or of the other before execution is sued out, no longer 
material, (/i) 

(/) Mitf. 126 5 Neate v. Duke of Marlborough, 3 M. & C. 407 ; Stileman 
V. Ashdown, 2 Atk. 608 ; Rider v. Kidder, 10 Ves. 360, 368 ; Skeeles v. 
Shearley, 3 M. & C. 112. 

{g)l&.2 Vict. c. 110, s. 9-22 ; 2 Vict. c. 11, s. 5. 

(A) 1 & 2 Vict. c. 110, 8. 11 ; 2 Sug. V. & P. 401 ; 5 Jarm. Byth. 48 ; 1 
Id. 107 ; Prideaux on Judgments 58. 



292 . ADAMS's DOCTRINE OF EQUITY. 

The operation of the fieri facias at law is extended by 
authorizing the sherifT to seize money, bank notes, bills of 
exchange, and other securities, to pay the money or notes 
to the creditor, and to sue on the bills or securities in his 
own name, paying over the money to be recovered to the 
creditor. (^) 

The remedies by equitable fieri facias and elegit will of 
course be extended in a corresponding degree ; but they 
are still far from satisfactory remedies. The elegit is 
imperfect, because it can only operate by perception of 
profits, and does not authorize acceleration of payment by 
a sale; the^. /a. is imperfect because it cannot operate 
on stock or shares. 

In order to obviate these difficulties the judgment 
charge has been introduced. 

r*l S21 *The right to an elegit or fietn facias, whether 
legal or equitable, is left untouched, and in the 
case of personal estate, other than stock or shares, no al- 
teration has been made. But with respect to real estate, 
whether legal or equitable, and whether liable to execution 
or not, and with respect to interest in stock or shares, 
whether legal or equitable, the operation of the judgment 
is still further extended, and it is constituted, under cer- 
tain restrictions, an actual charge in equity ; but the ope- 
ration of such charge, as well as the extended execution 
under the preceding clauses, is declared of no effect as 
against purchasers or mortgagees without notice, (k) 

The judgment charge on real estate is created by an 
enactment, that a judgment properly registered shall 
operate as a charge in equity on all lands and heredita- 
ments, including copyholds and customary holds, to 
which the debtor may, at or after the time of entering 

(f) 1 & 2 Vict. c. 110, s. 12. (A:) 2 & 3 Vict. c. 11, s. 5. 



PERFECT AND IMPERFECT MORTGAGES. 293 

the judgment, be entitled, for any estate or interest at 
law or in equity, whether in possession, reversion, or re- 
mainder, or expectancy, or over which he may at either of 
such times have a sole disposing power exercisable for his 
own benefit, and shall be binding against himself and all 
persons claiming under him, and also against his issue and 
persons whom, without assent of any other person, he 
might bar, with the like remedies in equity for its enforce- 
ment, as if he had by writing under his hand agreed to 
charge them with the debt and interest. But it is enacted, 
that no judgment creditor shall be entitled to proceed in 
equity to obtain the benefit of such charge, until after the 
expiration of one year from the time of entering up the 
judgment; and that no, such charge shall operate to give 
any preference in bankruptcy, unless such judgment shall 
have been entered up one year at least before the bank- 
ruptcy. (^ 

*The judgment charge on stocks and shares is r^-t qo-i 
created by enactments, that if a judgment debtor 
have an estate or interest in stock or shares, or in the divi- 
dends or interest of stock or shares standing in his name 
in his own right, or in the name of any other person in 
trust for him, or in the name of the Accountant-General, 
a judge's order may be obtained, to be made in the first 
instance ea^ parte, and afterwards made absolute on notice, 
charging such stock or shares, or any part thereof, or the 
dividends or interest thereon, with payment of the judg- 
ment debt and interest ; and that such order shall entitle 
the judgment creditor to the same remedies as if the 
charge had been made by the debtor himself; provided 
that no proceedings shall be taken to have the benefit of 

(Z) 1 & 2 Vict. c. 110, 8. 13 ; Smith v. Hurst, 1 Coll. 705; Clare©. Wood, 
4 Hare 81 ; Harris v. Davison, 15 Sim. 128. 



294 ADAMS'S DOCTRINE OF EQUITY. 

such charge until after the expiration of six calendar 
months from the date of the order. (772) 

Under these clauses the right of the judgment creditor 
is no longer restricted to property which is capable of 
seizure, nor to the inconvenient remedy by perception of 
profits ; but is extended to all property, both legal and 
equitable, and may be made available by sale. 

A clause is contained in the act for the purpose of pre- 
cluding a creditor from enforcing his remedies under it 
against the debtor's property, and at the same time taking 
the debtor's person in execution. The common law rule 
on this subject is, that if part only of the debt be levied 
on 2ifi.fa., or on execution had of goods under an elegit, 
the plaintiff may have a capias' a^ satisfaciendum for the 
residue; but that if lands be seized under an elegit, the 
execution is of so high a nature that after it the body of 
the defendant cannot be taken, (w) The statutory enact- 
ment is that, if a judgment creditor who under the powers 
of the act shall have obtained a charge, or be entitled to 
r*1 ^/tl ^^^ benefit *of a security, shall afterwards and 
before the property so charged or secured shall 
have been realized, and the produce applied towards pay- 
ment of the debt, cause the person of the debtor to be 
taken in execution, he shall be deemed to have relin- 
quished such charge or security. (0) 

(to) 1 & 2 Vict. c. 110, 88. 14 & 15; 3 & 4 Vict. c. 82, s. 1 ; Bristed v. 
Wilkins, 3 Hare 235. 
(») 3 Steph. Bl. 650, 652. 
(o) 1 & 2 Vict. c. 110, s. 16 ; Houlditch v. Collins, 5 Bea. 497. 



OF CONVERSION, ETC. 295 



*CHAPTER IV. [n35] 

OF CONVERSION PRIORITIES ^NOTICE TACKING. 

In immediate connection with the subjects just con- 
sidered, of trusts, contract, and mortgage, we have to 
consider the doctrines of equitable conversion, and of 
priority among conflicting equities; doctrines which, 
though applicable to all subjects of equitable jurisdic- 
tion, are more especially important in regard to these. 

The doctrine of Equitable Conversion is embodied in 
the maxim that "What ought to be done, is considered in 
equity as done;" and its meaning is, that whenever the 
holder of property is subject to an equity in respect of it, 
the Court will, as between the parties to the equity, treat 
the subject-matter as if the equity had been worked out, 
and as impressed with the character which it would then 
have borne. 

The simplest operation of this maxim is found in the 
rule already noticed, that trusts and equities of redemp- 
tion are treated as estates ; but its effect is most obvious 
in the constructive change of property from real to per- 
sonal estate, and vice versa, so as to introduce new laws of 
devolution and transfer. 

Let us first consider the doctrine in its operation under 
a trust. 

The rule in respect to trusts is, that if an imperative 
trust is created either for employing money in the pur- 



^96 ADAMS's DOCTRINE OF EQUITY. 

chase of land, or for selling land and turning it into 
r*1 Rfil *Dioney, the money or land, of which a conver- 
sion is directed, will be dealt with in equity dur- 
ing the continuance of the trust, and for objects within 
the scope of the trust, as if the purchase or sale had been 
actually made.(a)^ 

(a) Fletcher v. Ashburner, 1 B. C. C. 497. 

^ The rule is well settled that where there is an absolute and imperative 
direction that land shall be sold and turned into money, or money be em- 
ployed in the purchase of land, the money is considered in equity in all 
respects as converted into land, or the land into money, as the case may 
be : Craig v. Leslie, 3 Wheat. 564 ; Peter v. Beverly, 10 Peters 532 ; Tay- 
lor V. Benham, 5 How. 233 ; Hawley v. James, 5 Paige 320 ; Smith v. 
McCrary, 3 Ired. Eq. 204 ; Gott v. Cook, 7 Paige 534 ; Commonwealth v. 
Martin's Ex'rs., 5 Munf. 117 ; Kane v. Gott, 24 Wend. 660; Johnsons. 
Bennett, 39 Barb. 251 ; Pratt v. Taliaferro, 3 Leigh 419 ; Rutherford v. 
Green, 2 Ired. Eq. 122 ; Siter v. McClanachan, 2 Gratt. 280 ; Harcum v. 
Hadnall, 14 Id. 369 ; Wilkins v. Taylor, 8 Rich. Eq. 294 ; Reading v. 
Blackwell, 1 Bald. 166 ; Hurtt v. Fisher, 1 liar, & G. 88 ; Leadenham v. 
Nicholson, Id. 267 ; Morrow v. Brenizer, 2 Rawle 185 ; Burr v. Sim. 1 
Whart. 265 ; Smith v. Starr, 3 Id. 65 ; Rice v. Bixler, 1 W. & S. 445 ; Wil- 
ling V. Peters, 7 Penn. St. 287 ; Parkinson's Appeal, 32 Id. 455 ; Brolasky 
V. Gally's Ex'rs., 51 Id. 509 ; Scudder v. Vanarsdale, 2 Beas. 109 ; Loril- 
lard V. Coster, 5 Paige 172; Drake v. Pell, 3 Edw. Ch. 251 ; Thomas v. 
Wood, 1 Md. Ch. 296 ; Collins v. Champ's Heirs, 15 B. Monr. 118. A col- 
lection of the English authorities on this subject will be found in Fon- 
blanque's Eq., Vol. I., Book 1, Ch. 6, Sec. ix., notes s and t. See the notes 
to Fletcher v. Asburner, 1 Lead. Cas. in Eq. 659. Where one by will 
directed real estate to be sold, and the proceeds divided among residuary 
legatees, and one of them, a./eme coverte, died before the time of payment, 
it was held that the land must be considered as money ; and there being 
no election by the Jeme coverte to take the legacy as land, the devise passed 
to the husband and his representatives as personalty : Rinehart v. Harrison, 
Baldw. 177. And where a will directs executors to sell the real estate, and 
distribute the proceeds in a manner specified, the land will be treated as 
personal property, and upon the death of one of the distributees before 
the time appointed for the sale, his share will descend as personal estate : 
Marsh v. Wheeler, 2 Edw. Ch. 156 ; Pratt v. Taliaferro, 3 Leigh 419 ; 
Reading v. Blackwell, Baldw. 166 ; Smith v. McCrary, 3 Ired. Eq. 204 ; 
Hurtt V. Fisher, 1 Har, & G. 88 ; Morrow v. Brenizer, 2 Rawle 185. 

Where the sale is made by the act of the law, as under proceeding for 



OF CONVERSION, ETC. 297 

The points which require notice under this rule are the 
requirement that the converting trust shall be imperative, 
and the limitation of the continuance and purposes of the 
conversion so as to coincide with the continuance and 
purposes of the trust. 

First, the conversion must be directed by an imperative 
trust; for if the trustees are entitled to exercise a discre- 
tion, there is no duty imposed on them to make the change 
and no reason to deal with the property as if they had 
done so.^ If, for example; the trustee is authorized to 
" sell or not sell," as he may think best, or if he is directed 
to purchase "freeholds or leaseholds," or to invest "on 



payment of debts or to make partition, there is no conversion until all 
the conditions of sale are complied with, at least so far as to entitle the 
purchaser to a deed: Biggert's Est., 20 Penn. St. 17; and see Betts r. 
Wirt, 3 Md. Ch. 113 ; Jones v. Plummer, 20 Id. 416. 

Where land is not converted out and out, and at all events into personal 
property, but on the contrary its conversion depends upon a condition, it 
will not be considered in equity as personal estate : Evans v. Kingsberry, 
2 Rand. 120. So if it depend upon a contingency : Naglee r. Ingersoll, 7 
Penn. St. 197. 

' If there is an absolute direction to sell it is not material that the time 
of sale, if fixed, is postponed : Reading v. Biackwell, Baldw. C. C. 166 ; 
Rinehart v. Harrison, Id. 177 : Hocker r. Gentry, 3 Mete. 473 ; see, also, 
Barnett v. Barnett's Adm'r., 1 Id. 258. Where the power of sale, however, 
is discretionary, there is no conversion till it is actually exercised : Domi- 
nick V. Michael, 4 Sandf. S. C. .374; Bleight v. Bank, 10 Penn. St. 132; 
Pratt V. Taliaferro, 3 Leigh 419 ; Montgomery v. Milliken, 1 Sm. & M. 
Ch. 495; Greenway v. Greenway, 2 De G., F. & J. 128. So where the 
power is to be exercised with the consent of the parties interested : Nagle's 
Appeal, 13 Penn. St. 262 ; Stoner v. Zimmerman, 21 Id. 394 ; Ross v. 
Drake, 37 Id. 373 ; Anewalt's Appeal, 42 Id. 414. But a mere discretion 
given as to the time when the power is to be exercised, will not prevent a 
conversion where the direction to sell is absolute : Stagg v. Jackson, 1 
Comstock 206 ; Tazewell v. Smith, 1 Rand. 313 ; though see contra, Christ- 
ler's Ex'rs. v. Meddis, 6 B. Monr. 35. A mere power to sell will not work 
a conversion : Phelps v. Pond, 23 N. Y. 69 ; Chew v. Nicklin, 45 Penn. 
St. 84. 



298 ADAMS's DOCTEINE OF EQUITY. 

land or good security," there is no positive expression of 
intention to convert, and the Court in dubio will not inter- 
fere ; but the use of such expressions, or of others which 
in terms imply an option, will not deprive the trust of 
an imperative character, if other portions of the instrument 
show a contrary intent. A mere declaration that the pro- 
perty shall be considered as converted is immaterial ; for 
it is not the declaration, but the duty to convert, which 
creates the equitable change. (^)^ 

Secondly, the duration of the converted character is 
coincident with that of the trust. For the conversion 
originates in the duty of the trustee ; and if the trust be 
countermanded either by the exercise of a revoking power 
in the donor, or by the act of those in whom the absolute 
dominion has vested, the duty is at an end ; and the con- 
structive conversion is determined with it. 

Where the trust is countermanded by the subsequent 

r*1 ^71 ^owners, their act is denominated a reconversion.^ 

And such act must be equally unequivocal with 

(6) Thornton v. Hawley, 10 Ves. 129 ; Polley v. Seymour, 2 Y. & C. 708 ; 
Cookson ». Cookson, 12 CI. & F. 121 ; Attorney-General v. Mangles, 5 Mee. 

6 W. 128. 

1 Taylor v. Taylor, 3 De G., M. & G. 190 ; Robinson v. The Governors, 
&c., 10 Hare 29. 

* Though land directed to be sold is considered as money, yet an election 
may be made by those having a right to elect to take it as land : Tazewell 
V. Smith, 1 Rand. 313 5 Craig v. Leslie, 3 Wheat. 578 ; Burr v. Sim, 1 Whart. 
252 ; Broome v. Curry, 19 Ala. 805. But this election must be by some 
unequivocal act, and all the parties interested must join : Willing v. Peters, 

7 Penn. St. 290 ; Pratt v. Taliaferro, 3 Leigh 428 ; Harcum v. Hudnall, 14 
Gratt. 369 ; High v. Worley, 33 Ala. 196 ; Beatty v. Byers, 18 Penn. St. 
105 ; Dixon i\ Gayfere, 1 De G. & J. 655. Mere lapse of time, however 
great, is not sufficient : Beatty v. Byers. Nor the mere entering into and 
taking possession of the estate : Dixon v. Gayfere. As to the power of an 
infant to make an election, see Burr 13. Sim ; Pratt v. Taliaferro ; Fletcher 
V. Ashburner (supra). 



OF CONVERSION, ETC. 299 

the original trust. It need not, however, be evidenced 
by an express declaration of change. It is sufficient if 
the conduct of the parties distinctly shows an intention 
to deal with the property in its original, instead of its 
converted character ; as, for example, by entering on and 
demising land which is directed to be sold,(c) or by re- 
ceiving or reinvesting money which is directed to be laid 
out in land.(</) But if an estate is directed to be sold, 
and the proceeds to be divided among several persons, a 
reconversion cannot be effected until all are competent 
and willing to join ; for the duty imposed on the trustee, 
is to convert the entire estate for the benefit of all, and 
that duty continues until countermanded by all.(^) 

The receipt by the cestui que trust of money convertible 
into land operates, as we have seen, as a reconversion. 
And the same result follows where a covenant has been 
entered into for purchasing land on trust, and the cove- 
nantee has become the only cestui que trust. In this case 
the money is said to be " at home " in his hands ; and the 
union of the double character in himself operates as a con- 
structive receipt, and determines the trust. (/) 

It has been contended that the right to countermand the 
converting trust renders a gift of the proceeds of conver- 
sion equivalent to a gift of the unconverted property 5 and, 
consequently, that a gift of land to a trustee, on trust to 
sell and pay the proceeds to an alien, is invalid as against 
the policy of law. But it is decided otherwise ; for the 
trust is in truth a compliance with the law by direct- 

(c) Crabtree r. Bramble, 3 Atk. 680. 

\d) Lingen v. Sowray, 1 P. W. 172 ; Cookson v. Cookson, 12 CI. & F. 121. 

(c) Fletcher v. Ashburner, 1 B. C. C. 497, 500; Deeth r. Hale, 2 Moll. 
317 ; Seeley v. Jago, 1 P. W. 389. 

(/) Pulteney v. Darlington, 1 B. C. C. 223, 238 ; 7 B. P. C. by Toml. 
530 ; Wheldale v. Partridge, 8 Yes. 227, 235. 



300 I ' ADAMS's DOCTRINE OF EQUITY. 

ing that the land shall be sold to persons who may 
r*1 ^81 *l^S^lly ^^^^ i^? i^ order to raise the money which 
the alien may legally hold. And, although the 
alien would be entitled to elect against the conversion, 
there is no reason to force that election on him, or to in- 
flict a forfeiture of money, which he can enjoy, because 
he might have elected to take land, which he cannot. (^)^ 
- Thirdly, the conversion will operate for those purposes 
only which fall within the scope of the trust. 

The principal doubts on this point have arisen in re- 
gard to resulting trusts ; viz., where conversion is di- 
rected for a particular purpose, which fails to exhaust the 
entire interest. The question then arises, whether the 
owner under the resulting trust shall be determined ac- 
cording to the original, or according to the converted, 
nature of the property. 

The law on this subject has been, to some extent, stated 
under the head of Resulting Trust ; but it will be con- 
venient to restate it here. 

The general principle is, that the conversion is limited 
to the purpose of the donor, and that, therefore, in the 
event of failure, the property will devolve according to its 
original character/^ If, for example, land be devised for 
sale with a direction to apply the produce for purposes 
altogether illegal, or which altogether fail, the heir-at-law 
is entitled. If the purposes are partially illegal, or par- 

( g) Fourdrin v. Gowdey, 3 M. & K, 383 ; Du Hourmelin v. Sheldon, 1 
Bea. 79.; 4 M. & C. 525. 

' Craig V. Leslie, 3 "Wheat 564 ; Commonwealth v. Martin, 5 Munf. 
117; Taylor ». Benham, 5 How. U. S. 269; Anstice v. Brown, 6 Paige 
448. 

^ The student will find a clear statement of the rule upon this subject 
in Bective v. Hodgson, 10 House of Lords Cas. 656. See also, Hill on Trus- 
tees 127-128, and notes. 



OF CONVERSION, ETC. 301 

tially fail, or if they require the application of a part only 
of the land devised, he is entitled to so much of the land 
or of its produce as was destined for the ineffective pur- 
pose, or so much as is not required for the purpose of 
the will. And e converse, if a purchase of land be di- 
rected for purposes which are altogether or partially 
illegal, or which altogether or partially fail, the next of 
kin are entitled to the money, or to so much of it, as can- 
not or need not be applied to the purposes of the will.(A)^ 

[h) Cogan r. Stephens ; Lewin on Trustees, App. vii. ; Hereford v. Ra- 
venhill, 1 Bea. 481; Eyre r. Marsden, 2 K. 564, 574 ; Ackroyd r. Smithson, 
1 B. C. C. 503. 

^ The result of the authorities on this subject ia, that where land is de- 
vised to be sold for purposes which are illegal, or fail, in whole or part, or 
do not exhaust the whole interest, the heir takes the disappointed interest, 
to the exclusion of the next of kin. Where there is only a partial failure 
or lapse, so that a sale is still necessary, or as to any undisposed of sur- 
plus, the heir takes the money as land : Craig v. Leslie, 3 Wheat. 564 ; 
Burr V. Sim, 1 Whart. 252 ; Morrow r. Brenizer, 2 Rawle 185 ; Pratt v. 
Taliaferro, 3 Leigh 419; Owens v. Cowan, 7 B. Monr. 152; Lindsay v. 
Pleasants, 4 Ired. Eq. 320; Slocum v. Slocum, 4 Edw. Ch. 613 ; Bogert v. 
Hertell, 4 Hill (N. Y.) 493. The converse of this rule applies as to money 
to be laid out on land : Hawley p. James, 5 Paige 323 ; except that where 
the money is disposed of only for a limited interest, it, or the land when 
purchased, beyond that interest, goes to the heir : 2 Jarm. Pow. on Dev. 74 ; 
Thorn v. Coles, 3 Edw. Ch. 330. In De Beauvoir r. De Beauvoir, 3 House 
Lords Cas. 524, where there was a power to lay out money on land, and a 
blended disposition of the realty and personalty, so as to produce a con- 
version of the latter, and to show an intention to impress it with the char- 
acter of real estate, and the whole was devised to designated persons in tail 
male, with a limitation over to the testator's right heirs, it was therefore 
held that the intention did not cease with the failure of issue male under 
the limitations, so as to make the real estate go one way and the unin- 
vested personalty another. 

The rights of the heir are not affected, in these respects, by the fact that 
the produce of the real estate is blended with the personalty as a joint fund : 
Lindsay v. Pleasants, 4 Ired. Eq. 321 ; Wood r. Cone, 7 Paige 476. In some 
of the American cases, however, it has been held that where it appears to 
have been the testator's intention that the land shall change its character 



302 ADAMS's DOCTRINE OF EQUITY. 

r*l S<)1 ^^ ^^^® manner, a conveyance of *real estate in the 
owner's lifetime, on trust to convert it into money 
and to pay the proceeds to him or to his executors, will 
not, if the estate is unsold at his death, work an equitable 
conversion in favor of the crown, so as to subject it to 
probate duty.(^)^ 

To this extent the general rule is clear. But where 
real estate is devised foe sale, and its produce, either alone, 
or in union with the personal estate, is constituted a fund 

(i) Matson v. Swift, 8 Bea. 368; Taylor v. Haygarth, 14 Sim. 8. [See 
Cradock ». Owen, 2 Sm. & Giflfard 241.] 



for all purposes, and be considered as personalty, the next of kin will be 
entitled in the failure of any particular purpose : Craig v. Leslie, 3 Wheat. 
383 ; Burr v. Sim, 1 Whart. 263 ; Morrow v. Brenizer, 2 Rawle 185. But 
in England the rule is now that not the most express directions in the will, 
as that the proceeds of real estate shall constitute a fund of personalty, or 
the like, will exclude the right of the heir, unless, perhaps, there is a dis- 
tinct bequest to the next of kin on the occurrence of such failure : Taylor 
V, Taylor, 3 De G., M. & G. 190 ; Robinson v. The Governors, 10 Hare 
29 ; Fitch V. Weber, 6 Id. 145 ; Gordon ». Atkinson, 1 De G. & Sm. 478 ; 
Sammons v. Rose, 25 L. J. Ch. 615 ; 20 Jurist 73. 

Though the undisposed of interest in land devised to be sold for par- 
ticular purposes is treated as land, so as to descend to those who would 
have been entitled had it remained unconverted, yet after actual conver- 
sion the surplus descends as money: Pennell's App., 20 Penn. St. 515; 
Whitebread v. Bennet, 18 Jurist 140. 

^ Where a settlor conveys real estate upon trusts for sale, and directs the 
proceeds to be applied to certain purposes, some of which fail, whether the 
sale is directed in the lifetime of the settlor or after his decease, the property 
will, to the extent to which the purposes fail, result to the settlor as personal 
estate, Secus, if there is a failure of the whole purposes for which the sale 
is directed : Clarke v. Franklin, 27 L. J. Ch. 567 ; 4 Kay & Johns. 257. 
In Wilson v. Coles, 28 Bea. 215, there was a direction to sell real estate, 
to invest the proceeds, to pay the income thereof to the testator's wife for 
life, and after her death to pay the principal to a charity. The gift to the 
charity failed ; but it was held that there had been a conversion out and 
out, that the testator's heir took the residue, which remained undisposed 
by reason of the failure of the gift to the charity, as personalty, and that 
as such it passed to hie personal representatives, and not to his heir-at-law. 



OF CONV.ERSION, ETC. 303 

for particular payments, a contention sometimes arises as 
to the purpose really in view; viz., whether it was con- 
fined to those particular payments, or extended to a total 
change of character, so that the surplus may be liable as 
personal assets to creditors, may pass to a legatee of the 
personal residue, and may have the benefit of augmenta- 
tion by lapse, independently of the enactment of 1 Vict, 
c. 26. The prima facie construction is in favor of the more 
limited view; but if the will shows an intention to con- 
vert quoad the ulterior object, there is no reason to con- 
fine its effect. The question, however, is one of construc- 
tion only, and it is sufficient here to notice that it exists, {ky 
The circumstance that the conversion has been de facto 
made, is immaterial in determining who is entitled to the 
surplus. But the necessity of such conversion for the 
other purposes of the gift, may be material in determining 
in what character the party takes. The former question 

{k) 1 Jarm. on Wills, c. xix, ss. 4 & 5 ; Amphlett v. Parke, 1 Sim. 275 ; 
4 Ru88. 75 ; 2 R. & M. 221. 

^ The heir-at-law has a resulting trust in land directed to be sold, after 
debts and legacies are paid, and may come into equity and restrain the 
trustee from selling more than is necessary to pay the debts and legacies, 
or may offer to pay them himself, and pray to have a conveyance of a part 
of the land not sold in the first case, and the whole in the latter, which 
property will in either case be land and not money ; but, if the intent of 
the testator appears to be to stamp upon the proceeds of lands the quality 
of personalty, not only for the particular purposes of the will, but to all 
intents, the claim of the heir-at-law to a resulting trust is defeated, and the 
estate is considered to be personal : Craig ». Leslie, 3 Wheat. 582, 583. 
See also Burr ». Sim, 1 Whart. 252 ; Pratt v. Taliaferro, 3 Leigh 419 ; 
Wright V. Trustees of Methodist Episcopal Church, 1 Hoff. Ch 205 ; Mor- 
row V. Brenizer, 2 Rawle 185 ; but see note to previous page. 

Equity will extend the same privilege to the residuary legatees which is 
allowed to the heir, viz., to pay debts and legacies, and call for a convey- 
ance of the real estate, or to restrain the trustee from selling more than is 
necessary to pay debts and legacies : Craig v. Leslie, ubi supra. 



304 ADAMS's DOCTRINE OF EQUITY. 

depends on the original character of the property; the 
latter on the character which at the time of his taking it 
has been impressed on it by the creator of the trust. The 
test, therefore, by which the question should be tried, is 
the inquiry whether the effective trusts do or do not require 
the conversion to be made. If they do require it, the un- 
disposed-of interest will be held by him in its converted 
character; if they do not, in its original one. Let us, for 
r*14-m ^^^'^P^^? assume that land is devised on trust *to 
sell, and to divide the proceeds between A. and 
B. A dies in the testator's lifetime; B. survives him. In 
this case, there is a resulting trust of A.'s moiety for the 
heir; but a sale for convenience of division is just as 
necessary between B. and the heir, as it was between A. 
and B. The execution of the trust therefore requires a 
sale, although its purposes do not exhaust the proceeds; 
and, accordingly, the heir will take his share as money; 
and if he die without altering its destination, it will go to 
his executor and not to his heir. If, on the contrary, both 
A. and B. die in the testator's lifetime, there is a resulting 
trust of the entirety for the heir. A sale, therefore, is no 
longer wanted; the heir will take the estate as land; and 
on his death it will devolve on his heir. (/) 

We will next consider the doctrine of conversion in its 
operation under contracts.^ 

{I) Smith V. Claxton, 4 Madd. 484 ; Jessopp v. Watson, 1 M. & K. 6G5 ; 
Hereford v. Ravenhill, 5 Bea. 51. 

^ The rules as to conversion apply to agreements between parties to a 
sale for the purposes of division : Hardy v. Hawkshavr, 12 Bea. 552 ; Na- 
glee V. Ingersoll, 7 Penn. St. 197. Or to a conveyance for the benefit of 
creditors on trusts for sale : Griffiths v. Ricketts, 7 Hare 299. An infant's 
share in the proceeds of realty sold under proceedings in partition, will be 
treated as real estate until he comes of age : Bateman v. Latham, 8 Jones 
Eq. 35. 



OP CONVERSION, ETC. 305 

The rule in respect to contracts is, that if a binding 
contract be made for the sale of land, enforceable in equity, 
such contract, though in fact unexecuted, is considered 
as performed ; so that the land becomes in equity the 
property of the vendee, and the purchase-money that of 
the vendor. The vendee, therefore, is entitled to the rents 
from the day named for completion, or, if a good title be 
not then shown, from the day when such title was first 
shown ; and he must bear any loss, and will be entitled 
to any benefit occurring between the contract and the con- 
veyance. And, vice versa, the vendor is entitled to inter- 
est from the same time, if the purchase-money be not paid 
unless such non-pajonent originate in his own fault, (w) 
On the same principle, if either party die before comple- 
tion, the equitable right to the land or purchase-money 
will devolve as real or personal estate. On the death of 
the vendee it will pass to the devisee or heir ; who will 
be entitled to have the price paid out of the personalty, 
or, if the contract be rescinded after the death, r^n^i-i 
*will be entitled to the purchase-mon ey instead, (w) 
On the death of the vendor it will pass to his executor, 
for whom the devisee or heir will be a trustee, (o) 

In the case of contracts, as in that of trusts, it is essen- 
tial that the contract be a binding one, and that the object 
of the conversion be within its scope.^ 

(m) 1 Sug. V. & P. c. iv., 8. 1 ; c. vi., 8. 2 ; 3 Sug. V. & P. c. xvi., 8. 1. 
(n) Broome v. Monck, 10 Ves. 597. 

(o) Knollys v. Shepherd, cited IJ. & W. 499 ; 1 Jarm. on Wills 147 ; 
1 Sug. V. & P. 291 ; Lumsden v. Frazer, 12 Sim. 263. 

' See ante, note p. 136, upon the subject of equitable conversion gener- 
ally, and also Story's Eq. Jurisprudence, ss. 790-793, and ss, 1212-1214 ; 
Henson v. Ott, 7 Ind. 512. An equitable conversion occurs though the 
election to purchase rests entirely with the vendee : Collingwood v. Row, 
26 L. J. Ch. 649 ; Kerr v. Day, 14 Penn. St. 112. If there be a rescission 
20 



306 ADAMS's DOCTRINE OF EQUITY. 

The first essential is that the contract be binding, and 
such as the Court will specifically execute. 

If, therefore, the vendee die before completion of the 
contract, and the contract be one which, either from defect 
in the title or for any other reason, was not obligatory on 
him at his decease, the heir or general devisee of realty 
cannot require that the executor shall complete the pur- 
chase. If, however, it were binding on the deceased con- 
tractor, it is immaterial that it was optional with the other 
party. When there is an option, if it be declared against 
the contract, the property will go according to its original 
character, and so long as the option is undeclared, the 
intermediate interest will follow the same course ; but 
when the option is made in favor of enforcing the contract, 
the conversion will take effect from the date of its being 
declared, (jo) 

The second essential is that the object for which con- 
version is assumed be within the scope of the contract. 

There is no equity for assuming a conversion in favor 
of or against any person who is not a party to the con- 
tract.^ 

{p) Broome v. Monck, 10 Ves. 595; Rose v. Cunynghame, 11 Id. 550 ; 
Townley v. Bedwell, 14 Id. 591 ; 1 Jarra. on Wills 49. 

after the death of the vendor it amounts to a reconversion into land, and 
his distributees, who would be entitled to the money, will take the land 
instead : Leiper's Ex'rs. v. Irvine, 26 Penn. St. 54. An interest in a con- 
tract for the purchase of land descends on the heirs of the purchaser; his 
administrator must account to them for the rents, or for moneys derived 
from sales : Griffith v. Beecher, 10 Barb. S. C. 432. So, on the other hand, 
the interest of the vendor is held by the heir in trust for the next of kin, 
and if the land is recovered back in ejectment, it is still held as personalty : 
Rose V. Jessup, 19 Penn. St. 280. 

A devise of lands is revoked by an agreement to sell in the devisor's 
life, and the purchase-money passes not to the devisee, but tlie residuary 
legatee : Donohoo v. Lea, 1 Swan (Tenn.) 119. 

^ Equitable conversion by a contract of sale, does not affect the rights of 



OF CONVERSION, ETC. 307 

It was at one time supposed that when an equitable 
interest had been acquired in leasehold property by a 
deposit of the lease for securing a debt, or by any other 
contract in the nature of an assignment, the contract was 
not only binding as between the intermediate parties, but 
that the landlord had a right to treat it as executed, and 
to proceed in equity against the assignee. A case might 
certainly *occur in which the person having the r-^^ i^-, 
equitable right might so conduct himself as to 
raise an equity in favor of the landlord, but it is decided 
that the mere existence of the contract cannot confer on 
the landlord any equity to interfere. (§') It has also been 
contended that a husband's assignment of his wife's choses 
in^ action should exclude the wife's right by survivorship, 
on the ground that such an assignment implies a contract 
to reduce the chose into possession, and is equivalent in 
equity to such reduction. This proposition was first over- 
ruled in respect to bankruptcy, and it was decided that 
whatever might be the rights of purchasers for value, the 
assignees in bankruptcy were entitled to no such equity. 
It was next overruled with respect to all assignments, 
although for valuable consideration, if the chose were re- 
versionary, and therefore incapable of present possession ; 
leaving the question still open, whether, if it were capable 
of immediate possession or become so during the cover- 
ture, the wife should be excluded. The principle is now 
extended to all cases ; and it is held that, although the 
husband's contract for value may, as between himself and 

(j) Moores r. Choat, 8 Sim. 508; Close ». Wilberforce, 1 Bea. 112; 
Robinson v. Kosher, 1 You. & Coll. N. C. C. 7. 

- _ 

the creditors of the vendor: Leiper's Ex. v. Irvine, 26 Penn. St. 54. The 
rights of the widow and distributees in the fund are not changed by the 
reconversion : Leiper's Appeal, 35 Penn. St. 420. 



308 ADAMS'S DOeTBINE OF EQUITY. 

the assignee, be equivalent to a reduction into possession, 
yet as against the wife, who is no party to the contract, 
it cannot have that effect, (r)^ 

On an analogous principle to that of conversion, it is 
held that where property subject to a trust has been un- 
duly changed, the substituted property is bound by the 
incidents of that which it represents.^ If, therefore, the 
guardian or trustee of an infant invest his personal estate 
in land without authority for so doing, the land will be 
affected in equity as personal estate, and will pass to the 
administrator on the infant's death.^ Or again, if timber 
be cut by a guardian or trustee on the estate of an infant 
tenant in fee, the proceeds will be realty, and will go to 
r*14.^1 ^^® *heir; it is otherwise if the infant be tenant 
in tail, for the conversion into personalty is then 
palpably for his benefit, and the act ceases to be a breach 
of trust. If the timber is blown down by accident, or is 
cut down by a stranger tortiously, or if the act of the 
guardian or trustee is authorized by the Court, there is 
no breach of trust, and therefore no equity, (s) 

In like manner, if an estate or fund has been changed 
by breach of trust, the cestui que trust may, at his option, 
waive its restoration, and may attach and follow it in its 
altered form, e. g., if a trustee or executor purchase an 
estate with his trust-money or assets, and the fact of his 

(r) Ashby v. Ashby, 1 Coll. 553 ; Rees v. Keith, 11 Sim. 388 ; Ellison v. 
Elwih, 13 Sim. 309 ; Burnham v. Bennett, 2 Coll. 254. 

(») Tullit V. TuUit, Amb. 370 ; Witter v. Witter, 3 P. W. 99 ; Pierson v. 
Shore, 1 Atk. 480 ; Ex parte Bromfield, 1 Ves. J. 453 ; 3 B. C. C. 510 ; 
Oxenden v. Lord Compton, 2 Ves. J. 69. 

^ See, however, in the United States, note to Hill on Trustees, p. 642, 
4th Am. ed. 

^ See Philips v. Crammond, 2 W. C. C._R. 441; and note, ante, page 33. 
' Collins V. Champ's Heirs, 15 B. Monr. 118. 



OP CONVERSION, ETC. 309 

having done so be admitted or distinctly proved, the par- 
ties interested in the money may claim the estate, or if 
the purchase be made, partly out of the trust fund and 
partly out of the trustee's own property, they may claim 
a lien for the amount misapplied. It is essential, how- 
ever, that the one property shall have been produced by 
the other ; and therefore the doctrine wiU not apply if 
the estate be purchased with borrowed money, and a 
trust fund misapplied in payment of the debt. The prin- 
ciple of this doctrine is identical with that which origi- 
nates a resulting trust, that when one man pays for an 
estate and has it conveyed to another, the grantee, who 
has the legal estate, is a trustee by operation of law for 
the purchaser. K a trust fund be applied in paying for 
the estate, and the cestui que trust affirms the purchase, it 
becomes a purchase with his money, and entitles him to 
the estate. It is therefore unnecessary that the trust 
should be evidenced in writing, notwithstanding that the 
claim may be fox real estate. But the application of the 
trust fund must be admitted by the answer or proved by 
convincing evidence. And unless there be corroborating 
circumstances, such as a written account by the trustee 
showing how the *money was used, or a clear r^-i^i-i 
inability in him to make the purchase with other 
funds, mere parol evidence of declarations supposed to be 
made by him will be received with great caution. (^)^ 

{<) Lane v. Dighton, Amb. 409 ; Lewis v. Maddocks, 8 Ves. 150 ; 17 Id. 
48 ; Denton v. Davis, 18 Id. 499 ; Taylor v. Plumer, 3 M. & S. 575 ; Lench 
V. Lench, 10 Ves. 511 ; Wilkins v. Stevens, 1 You. & Coll. V.-C. C. 431 ; 3 
Sug. V. «Sk P. c. XX., 8. 3 and 4. 

^ See Murray v. Lylburn, 2 John. Ch. 442 ; and note, page 33 : Olds v. 
Cummings, 31 111. 188 ; Pryor v. Wood, 31 Penn. St. 142. See also. May 
V. Le Claire, 11 AVall. (U. S.) 217. 



310 ADAMS's DOCTRINE OF EQUITY. 

The same rule has been applied where a contract had 
been rescinded upon the ground of fraud, and the pur- 
chase-money had been traced to a subsequent investment. 
It was held that where a contract is avoided on the ground 
of fraud, no property delivered under it passes from the 
owner; that the money, therefore, which had been paid 
still belonged to the vendee, who had paid it ; and that 
inasmuch as the money thus obtained by fraud, had been 
laid out in the purchase of stock which was traced and 
identified, the person on whom the fraud has been prac- 
tised was entitled to an injunction against its sale or as- 
signment. It does not appear to have been contended, 
that this principle could be resisted in the case of a mere 
naked fraud, which vitiates a contract both at law and in 
equity. But it was argued by Sir Edward Sugden, on 
behalf of the defendant, that its application was not jus- 
tified where the contract was rescinded on the ground of 
what may be called fraud in equity, rather than for abso- 
lute legal nullity. The distinction did not prevail with 
the Court; but it is still considered by Sir Edward Sug- 
den that, in the event of an appeal, the decree could 
hardly have been maintained, (if) ^ 

(tt) Small V. Attwood, Younge 507 ; 1 Sug, V. & P. 400. 

' The doctrine of conversion applies to a legislative direction for a sale : 
Snowhill V. Snowhill, 2 Green Ch. 20 ; see In re Arnold, 32 Beav. 591 ; Dixie 
V. Wright, Id. 662. The same principle has been applied in the working of 
the Act of Parliament for the emancipation of negroes in the West Indies, 
there treated as realty, giving compensation to the owners thereof: Richards 
V. Att.-Gen. of Jamaica, 6 Moore Priv. Coun. Gas. 381. But in England 
it has been held that money paid into court for land taken under the com- 
pulsory powers of an Act of Parliament, was to be treated as realty : Re 
Horner's Est., 5 De G. & Sm. 483 ; Re Steward's Est., 1 Drew. 636 ; Re 
Stewart, 1 Sm. & Giff. 39 ; Taylor's Settlement, 9 Hare 596 ; but see Ex 
parte Hawkins, J 3 Sim. 569; Ex parte Flamank, 1 Sim. N. S. 260. See 
also, Bank of Auburn v. Roberts, 45 Barb. 419. 



OF PRIORITIES, ETC, 311 

The doctrine of conversion, by changing the character of 
trusts and contracts, and altering them from mere rights 
of action into actual though imperfect titles in equity, 
gives rise to questions between them and the legal title, 
and also to questions between conflicting equities, where 
several have been created in reference to the same p^-. , r-i 
*thing. It therefore becomes necessary to consi- 
der the principle which determines the priority between 
such conflicting claims. 

The rule of priority in regard to transfers and charges 
of the legal estate, whether made spontaneously by a con- 
veyance, or compulsorily by a judgment at law, is that 
the order of date prevails. Conveyances take place from 
the date of the conveyance; judgments against realty 
from the date of the judgment; and judgments against 
personalty from the delivery of the writ; nor does the 
mere absence of valuable consideration aff'ect the priority, 
except where it is provided otherwise by statute. There 
are, however, several statutes which have this effect, 
viz., the statute of 27 Eliz. c. 4, by which certain grants 
of real estate are avoided as against subsequent pur- 
chasers ; that of Eliz. c. 5, by which certain grants either 
of real or personal estate are avoided against creditors ; 
and the Statutes of Bankruptcy and Insolvency, by which 
certain grants made by a bankrupt or insolvent are 
avoided as against his assignees.^ 

* The subject of conveyances of land and chattels in fraud of purchasers 
or creditors, upon which there is a very considerable diversity of decision 
and legislation in the different states, will be found discussed very fully, 
and with remarkable ability, in the notes to Sexton r. Wheaton, 1 Am. 
Lead. Cas. 17 : and to Twyne's Case, 1 Smith Lead. Cas. 33, 6th Am. ed., 
by the late Mr. Wallace. By Act of Congress of March 2d, 1867, to 
" Establish a uniform system of Bankruptcy throughout the United States," 
certain conveyances by persons in contemplation of bankruptcy and with 
an intention to defeat the operation of that act, are declared void. The 



312 ADAMS's DOCTKINE OF EQUITY. 

By the statute of 27 Eliz. c. 4, it is enacted, that con- 
veyances, grants, &c., of or out of any lands or heredita- 
ments had or made of purpose to defraud and deceive 
such persons as shall purchase the same lands or heredita- 
ments, or any rent, profit, or commodity out of the same, 
shall be deemed and taken, only as against such persons 
and their representatives as shall so purchase the same 
for money or other good consideration, to be utterly void. 
And further, that if any person shall make a conveyance 
of lands or hereditaments, with a clause of revocation at 
his pleasure, and shall afterwards sell the same lands or 
hereditaments for money or other good consideration, 
without first revoking the prior conveyance, then the 
prior conveyance shall be void as against the vendee. 

A conveyance may be rendered voidable under this 
act in three ways : viz.. First, if it be designedly fraudu- 
lent ; and in this case it may be avoided by a subsequent 
r*14.fi1 conveyance *from the heir of the grantor,^ as 
well as by one from the grantor himself. («;) Sec- 
ondly, if it contain a power of revocation, (w^) And 
thirdly, if it be made without valuable consideration, and 
followed by a conveyance or contract for value by the 
grantor. For it has been held that a voluntary grant, 

[v] Barrel's Case, 6 Rep. 72; 3 Sug. V. & P. 282. 
(w) 3 Sug. y. & P. 307. 

assignee in bankruptcy is entitled to recover the property thus improperly 
disposedof from the person to whom it has been transferred; and in cer- 
tain cases, as where there has been collusion between the bankrupt and 
the transferree, the latter, if a creditor, loses his right to prove his debt 
against the estate. 

^ This has been overruled in England by the recent case of Doe d. New- 
man V. Rusham, 17 Q. B. (79 E. C. L. R.) 723 ; and Burrel's Case shown 
not to support the proposition for which it is usually cited. See also, Doe 
V. Lewis, 11 C. B. (73 E. C. L. R.) 1035. 



OF PRIORITIES, ETC. 313 

coupled with such subsequent conveyance or contract, is 
sufficient to establish fraud as a conclusion of law. (x) But 
the grant may cease to be voluntary by matter ex post 
facto, and be thus made good against a subsequent pur- 
chaser, e. (/., if there be a subsequent conveyance from 
the volunteer to a purchaser for value. (^) If the grant 
be voluntary in part, it will be voidable to that extent, 
e. g., if it be made in consideration of marriage, and there 
be an ultimate remainder to the brothers of the settlor, 
the marriage will not per se support that remainder, and it 
may be set aside by the purchaser. (^) The grant when 
made cannot be recalled by the grantor, but he will not 
be restrained from defeating it by a sale, (a) When a 
lond fide sale for value has been made, the purchaser may 
set aside the prior grant, and his hona fides will not be 
affected by notice of \i.{hy If he claims under an exe- 
cuted conveyance, the prior grant wiU be invalid at law ; 
if under an executory contract, he may insist on a specific 
performance in equity ; but it cannot be enforced against 
him at the suit of the vendor, {c) 

(x) Doe V. Manning, 9 East 59 ; Pulvertoft v. Pulvertoft, 18 Ves. 84 ; 3 
Sug. V. & P. 286, et seq. 

[y) Prodgers v. Langham, 1 Sid. 133 : George v. Milbanke, 9 Ves. 190 ; 
Brown v. Carter, 5 Ves. 862 ; 3 Sug. V. & P. 297. 

(z) Johnson v. Legard, 6 M. & S. 60 ; T. & R. 281 ; Doe v. Rolfe, 8 A. & 
E. 650 (35 E. C. L. R.) ; Davenport v. Bishopp, 2 N. C. C. 451. 

(a) Petre v. Espinasse, 2 M. & K. 496 ; Pulvertoft v. Pulvertoft, 18 Ves. 
84. 

(6) Gooch's Case, 5 Rep. 60 a. ; Pulvertoft v. Pulvertoft, 18 Ves. 84 ; 
Buckle V. Mitchell, 18 Id. 100. 

(c) Buckle V. Mitchell, 18 Ves. 100 ; Metcalfe r. Pulvertoft, 1 Ves. & B. 
180 ; Smith v. Garland, 2 Meriv. 123 ; Johnson v. Legard, T. & R. 281 ; 3 
Sug. V. & P. 305 ; Willats v. Busby, 12 Law Jur. N. S. 105 ; 3 Sug. V. & 
P. 300, et seq. 

^ A different rule obtains in many of the United States : Note to Sexton 
V. Wheaton, 1 Am. Lead. Cas. 36, 4th Am. ed. 



314 ADAMS'S DOCTRINE OF EQUITY. 

r*1471 ^"^^ ^^ statute of 13 Eliz. c. 5, it is enacted, 
that all conveyances, grants, &c., of any lands, 
hereditaments, goods, or chattels, had or made of purpose 
to delay or defraud creditors and others of their actions 
or debts, shall be taken, only as against such persons and 
their representatives as shall or might be so (ielayed or 
defrauded, to be utterly void ; provided that the act shall 
not extend to any conveyance or assurance made on good 
consideration and hond fide to a person not having notice 
of such fraud. 

The provisions of this statute, like those of the statute 
in favor of purchasers,^ invalidate all conveyances and as- 
signments made with a fraudulent design ; {d) but they do 
not affect mere voluntary gifts, although the donor may 
afterwards become indebted \ for he may fairly intend to 
give away his property ; and if he were never allowed 
to do so effectively, it would produce mischiefs equally 
great with those which the act was intended to prevent. 
If, however, the party making a voluntary gift is deeply 
indebted at the time, it affords presumptive evidence that 
it was meant to defeat his creditors.^ If the amount given 
constitutes a large proportion of his estate, it increases the 
probability of such intent ; and if he is in a state of actual 
insolvency, it appears to be conclusive evidence of fraud. 
The presumption, however, does not arise except in favor 
of persons who were creditors when the gift was made.^ 

(d) Twyne's Case, 3 Rep. 80. 

^ See Danbury «. Robinson, 1 McCart. 213. 

* As to the extent of indebtedness which will render a voluntary con- 
veyance fraudulent as to creditors, the decisions in the United States are 
not uniform. See note to Sexton v. Wheaton, ut supr. 

' See McLane v. Johnson, 43 Verm. 48. 



OF PRIORITIES, ETC. 315 

But if the gift is set aside by them, the subsequent cred- 
itors will be let in to partake of the fund, {e) 

In order to invalidate a gift under this statute, the pro- 
perty must be of a kind to which the creditors can resort 
for payment ; for otherwise they are not prejudiced by 
the *gift. For this reason, if relief be asked in r*-i4Q-i 
the lifetime of the debtor, the creditor must ob- 
tain judgment for his debt, and the property must be 
such as can be taken in execution. It was, therefore, 
formerly held, that during the debtor's lifetime, and so 
long as he was not bankrupt or insolvent, an assignment 
of a chose in action could not be set aside ; but that it 
was otherwise on his bankruptcy, insolvency, or death, 
because the creditors might then reach all his personal 
property. It may be presumed that the same result will 
follow from the provisions of 1 & 2 Vict. c. 110. (/) 

The effect of bankruptcy, or of a discharge under the 
insolvent acts, in avoiding prior conveyances by the bank- 
rupt or insolvent, is dependent on peculiar principles and 
enactments, and is foreign to our present subject. 

The rule of priority which governs transfers and charges 
of a legal estate, governs also, in the absence of a special 
equity, transfers and charges of an equitable interest.* 
But if legal and equitable titles conflict, or if, in the ab- 
sence of a legal title, there is a perfect equitable title by 
conveyance on the one hand, and an imperfect one by 

(e) Cadogan v. Kennett, Cowp. 432 ; Kidney v. Coussmaker, 12 Ves. 136 , 
Richardson v. Smallwood, Jac. 552 ; Holloway v. Millard, 1 Mad. 414 ; 
Townsend v. Westacott, 2 Bea. 340 ; Ede v. Knowles, 2 N. C. C. 172, 178 ; 
Norcutt V. Dodd, Cr. & P. 100 ; 1 Story on Eq. Jur. s. 355, et seq. 

(/) Colmun V. Croker, 1 Ves. Jr. 160 ; Dundas v. Dutens, Id. 196 ; Nor- 
cutt V. Dodd, 1 Cr. & P. 100 ; Story on Eq. s. 366, et seq. 

» See Cory r. Eyre, 1 De G., J. & Sm. 167. 



316 ADAMS'S DOCTRINE OF EQUITY. 

contract on the other, a new principle is introduced, and 
priority is given to the legal title, or, if there is no legal 
title, to the perfect equitable one. This doctrine is em- 
bodied in the maxim, that "between equal equities the 
law will prevail;" 

In order, however, that this maxim may operate, it is 
essential that the equities be equal. If they are unequal, 
the superior equity will prevail; and such superiority 
may be acquired under any of the three following rules: 

1. The equity under a trust or a contract in rem, is 
superior to that under a voluntary gift, or under a lien by 
judgment. 

2. The equity of a party who has been misled, is 
superior to his who has wilfully misled him. 

3. A party taking with notice of an equity, takes sub- 
ject to that equity. 

r*14.Q1 *The first of these rules is, that the equity 
under a trust or a contract in rem, is superior to 
that under a voluntary gift, or under a lien by judgment. 
The principle on which this doctrine rests is, that the 
claimant under a trust or contract in rem, has acquired an 
equity to the specific thing which binds the conscience of 
the original holder, whilst the voluntary donee has no 
right of his own, but is entitled only to that which his 
donor could honestly give;^ and even the judgment cred- 
itor, though he has in some sense given a consideration, 
has not advanced his money on the specific security, 
and is entitled to his debtor's real interest alone, viz., 
his interest, subject to his equities as they existed 
at the date of the judgment.^ In accordance with this 

' See Green ». Givan, 33 N. Y. 343. 

* The rule is the same in the United States generally, in the absence of 
•tatutory regulation : Note to Basset v. Nosworthy, 2 Lead. Cas. Eq. 1. 



OF PRIORITIES, ETC. 317 

principle, it has been decided that the rights of a cestui 
que trust, of a purchaser for value by imperfect conveyance 
or executory contract, and of a mortgagee by deposit of 
deeds, have priority over a judgment of a later date, 
against the trustee, vendor, or mortgagor, notwithstanding 
that by means of an elegit, the judgment may have been 
clothed with the legal estate. (^) Nor is this doctrine 
affected by the late statute, transforming a judgment into 
a charge by contract. For the statute treats the legal 
estate as separate from the equitable interest, and makes 
each of them subject to the judgments against their re- 
spective owners. When, therefore, it is enacted that the 
judgment shall operate as a charge on the estate, it means 
a charge on the beneficial estate of the debtor. If he has 
a legal estate, subject to an equity, it will be a charge on 
the estate subject to the same equity. If he has an 
equitable interest, it will be a charge on that interest, (h) 

The second rule of superior equity is, that "the equity 
*of a party who has been misled, is superior to p^^ r^-i 
his who has wilfully misled him." 

This rule is, in fact, merely a specific application of the 
general doctrine of law with respect to fraud, where the 
fraud complained of is a representation, express or im- 
plied, false within the knowledge of the party making 
it.(z) Its effect, however, on the priority of conflicting 
equities, renders it proper to be noticed here. 

( g) Newlands v. Paynter, 4 M. & C. 408 ; Lodge v. Ly8eley,4 Sim. 70 ; 
Langton v. Uorton, 1 Hare 549, 560 ; Whitworth v. Gaugain, 3 Id. 416 ; 1 
Ph. 728. 

(A) 1 & 2 Vict. c. 110 ; Whitworth v. Gaugain, 3 Hare 416 ; 1 Ph. 728. 

(f ) Infra, Rescission of transactions on the ground of fraud. 

In Cadbury v. Duval, 1 Am. Law Reg. 105 (aflBrmed on appeal), the doc- 
trine was applied to a creditor by judgment for contemporaneous ad- 
vances. 



318 ADAMS's DOCTRINE OF EQUITY. 

The meaning of the rule is, that if a person interested 
in an estate knowingly misleads another into dealing with 
the estate as if he were not interested, he will be post- 
poned to the party misled, and compelled to make his 
representation specificall}'- good. If, therefore, a person, 
intending to huy an estate or to advance money on it, in- 
quires of another whether he has any encumbrance or 
claim thereon, stating at the same time his intention to 
make the purchase or advance, and the person of whom 
the inquiry is made untruly deny the fact, equity will 
relieve against him; and if he has acquired the legal 
ownership, will decree him a trustee for the puisne claim- 
ant.^ And even though he do not expressly deny his 
own title, yet if he knowingly suffers another to deal 
with the property as his own, he will not be permitted to 
assert it against a title created by such other person. (^)^ 
The same principle will apply if he lie by and allow 
another to expend money in improvements, without giving 
notice of his own claim. But the fact of improvements 
having been made in error, where such error was not 
abetted by himself creates no equity for reimbursement 
of their expense. (/) 

(k) 3 Sug. V. & P. 429 ; Nicholson v. Hooper, 4 M. & C. 179. 

[l) Pilling V. Armitage, 12 Ves. 78, 84 ; Cawdor v. Lewis, 1 Y. & C. 
427 ; E. I. Company v. Vincent, 2 Atk. 83 ; Williams v. Earl of Jersey, 
Cr. & P. 91 ; 3 Sug. V. & P. 437. 

\ Otis V. Sill, 8 Barb. S. C. 102 ; Lesley v. Johnson, 41 Barb. 359 ; Lee 
V. Kirkpatrick, 1 McCart 264 ; Crocker v, Crocker, 31 N. Y. 507 ; Chap- 
man V. Hamilton, 19 Ala. 121 ; Folk v. Beidelham, 6 Watts 339 5 McKelvey 
V. Truby, 4 W. & S. 323. It has been held, however, that a party will 
not be postponed on the ground of silence alone, where his title is upon 
record : Gouudie v. Northampton Co., 7 Penn. St. 239 ; Knouflf v. Thomp- 
son, 16 Id. 361 ; Hill V. Epley, 31 Id. 331 ; Clabaugh v. Byerly, 7 Gill 354. 
Neither infancy nor coverture will excuse parties guilty of fraudulent 
concealment: Schmithermen v. Eisernan, 7 Bush (Ky.) 298. 

* Carr v. Wallace, 7 Watts 400. 



OF PRIORITIES, ETC. 319 

In order to tlie introduction of this equity, it is essen- 
tial that there be intentional deceit in the defendant, or 
at all *events, that degree of gross negligence r*T ci-i ' 
which amounts to evidence of an intent to de- 
ceive. If, therefore, the party standing by be ignorant 
of his right, or if he has been merely careless or negli- 
gent ; e. g., where a mortgagee or trustee, by not taking 
the title deeds, or by subsequently parting with them, 
has enabled the mortgagor or cestui que trust to cpmmit a 
fraud, the mere circumstance of his having done so will 
not warrant relief against him.^ It may, however, ex- 
clude him from equitable aid as against a subsequent 
purchaser or mortgagee, (m) 

Cases of concealed or undisclosed interest, whether the 
non-disclosure be fraudulent or accidental, are obviously 
distinct from those where the interest was in its creation 
fraudulent and void, and where therefore its non-disclo- 
sure is not treated as a substantial equity, but as mere 
evidence of a pre-existent fraud. In respect to lands, 
such non-disclosure is not primd facie evidence of fraud; 
for the possession of land does not ordinarily follow the 
permanent ownership, but may belong to a mere tenant 
at will. In respect to personalty it is otherwise, for the 
ordinary proof of ownership is possession of the pro- 
Cm) Evans v. Bicknell, 6 Ves. 174 ; Martinez v. Cooper, 2 Russ. 198. 

^ A legal mortgagee will be postponed on account of not retaining the 
title deeds; when he displays fraud, or gross or wilful negligence, or when 
he gives up the deeds to the mortgagor for the express purpose of raising 
a sum of money, and thus puts it in the power of the latter to raise, a 
larger sum : Perry Herrick r. Attwood, 2 De G. & J. 21 (see Lloyd v. Att- 
wood, 3 De G. & J. 614) ; Waldron v. Sloper, 1 Drewry 193. But where 
there is no such negligent and deliberate action on the part of the mort- 
gagee, he will not be postponed : Hewitt v. Loosemore, 9 Hare 449 ; Colyer 
». Finch, 5 House Lds. Cas. 905. See also, Dowle v. Saunters, 2 Hem. & 
M. 242. 



320 ADAMS's DOCTRINE OF EQUITY. 

perty ; and therefore, if such possession be left in an 
assignor, it is prima facie a badge of fraud in the assign- 
ment, though subject to be rebutted by counter proof. (?^)^ 
The third, and most important rule of equity is, that 
"a party taking with notice of an equity takes subject to 
that equity."^ 

(n) Twyne's Case, 3 Rep. 80 ; Manton v. Moore, 7 T. R. 67 ; Leonard v. 
Baker, 1 M. & S. 251 ; Arundell v. Phipps, 10 Ves. 139, 145 ; Martindale 
V. Booth, 3 B. & Ad. 498. 

^ Twyne's Case, 1 Sm. Lead. Cas. 33, 6th Am. ed. 

^ The subject of notice will be found discussed in the notes to Le Neve 
V. Le Neve, 2 Lead. Cas. Eq. 23. Notice may be either actual or construct- 
ive. Actual notice arises from distinct knowledge or means of knowledge ; 
constructive notice springs from a presumption of law which fastens know- 
ledge upon a person conclusively supposed to be affected by the notice. 
Instances of the former are not needed ; of the latter, the notice afforded by 
the recording acts is an illustration. Notice must be certain, and not vague : 
Massie v. Greenhow, 2 P. & H. 255 ; Williamson v. Brown, 15 N. Y. 354-364. 
It must be clear enough to put a party on inquiry, and enable him to prose- 
cute that inquiry to a successful termination : Kerns v. Swope, 2 Watts 78. 
If this is done, it will be suiBcient : Hawley v. Cramer, 4 Cow. 717 ; Pearson 
V. Daniel, 2 Dev. & Bat. Ch. 360 ; Sigourney v. Munn, 7 Conn. 324 ; Booth 
V. Barnura, 9 Id. 286 ; Peters v. Goodrich, 3 Id. 146 ; Lasselle v. Barnett, 
1 Blackf. 150; Cotton v. Hart, 1 A. K. Marsh. 56 ; Pitney v. Leonard, 1 
Paige 461 ; Woodfolk v. Blount, 3 Hey 147 ; Harris v. Carter, 3 Stew. 233 ; 
Benzein v. Lenoir, 1 Dev. Ch. 225. And the notice need not be distinct 
and formal, for if a purchaser has the means of knowledge he cannot 
wilfully neglect them, but will be affected with notice : Graff v. Castleman, 
5 Randolph 195 : Pendleton v. Fay, 2 Paige 202 ; Doyle v. Teas, 4 Scam. 
202 ; Cook V. Gaiza, 14 Tex. 201 ; Wilson v. Miller, 16 Iowa 111 ; Tilling- 
hastu. Champlin, 4 R. Island 173, 215; Price v. McDonald, 1 Md. 403; 
Hoxie V. Carr, 1 Summer 193 ; Harper v. Reno, 1 Freem. Ch. 323 ; Green 
V. Slayter, 4 J. C, R. 47 ; Kerns v. Swope, 2 Watts ^8 ; Churcher v. Guern- 
sey, 39'Penn. St. 84; Flagg v. Mann, 2 Sum. 486; Hackwith v. Damron, 
1 Mon. 327 ; Miller v. Shackleford, 2 Dana 264 ; Billington's Lessee v. 
Welsh, 5 Binn. 132 ; 2 Lead. Cas. Ei^. 154 ; Allen v. McCalla, 25 Iowa 464 ; 
Bell V. Twilight, 18 N. H. 159 ; Parker v. Foy, 43 Miss. 260. The notice 
should come from parties interested, and vague representations by strangers 
will have no effect : Butler v. Stevens, 26 Maine 484 ; The City Council v. 
Page, 1 Spear's Eq. 159 ; Barnhart v. Greenshields, 28 Eng. L. & Eq. 77. 
But full and direct information, even from a stranger, cannot be disre- 



OF PRIORITIES, ETC. 321 

The meaning of this doctrine is, that if a person acquir- 
ing property has, at the time of acquisition,^ notice of a 

garded : Ripple v. Ripple, 1 Rawle 386. Notice to an agent is of course 
notice to the principal, but it must as a general rule be in the course of 
the same transaction. See Hill on Trustees 165, and notes ; post 157, note. 
And notice to one of several trustees is notice to all : see Willes c. Green- 
hill, 29 Beav. 376 ; also Brazelton v. Brazelton, 16 Iowa 417. A purchaser 
who is bound to take notice of a deed will be affected with notice of every- 
thing that appears upon its face : note to Le Neve v. Le Neve, 2 Lead. 
Gas. Eq. 169, and cases cited ; George v. Kent, 7 Allen 16 ; Montefiore », 
Browne, 7 House of Lords Cas. 241, See Hetherington v. Clark, 30 Penn. 
St. 393. And where it is the duty of a person to demand the production 
of title-deeds, he will be held to have notice of all the facts of which the 
production would have informed him : Peto v. Hammond, 30 Beav. 509 ; 
Kellogg V. Smith, 26 N. Y. 18. Possession is notice, because it ought to 
put parties upon inquiry : Krider v. Lafferty, 1 Whart. 303 : see Patton v. 
The Borough, 40 Penn. St. 206 ; Hughes ». United States, 4 Wall. S. C. 232 ; 
Morrison v. March, 4 Minn. 422 ; Bank of Newbury v. Eastman, 44 N. H. 
431 ; Warren v. Richmond, 53 111. 52; Perkins v. Swank, 43 Miss. 349 ; 
and even when the possession is not exclusive: Boggs v. Anderson, 50 
Maine 161 : Hill on Trustees 798, note (4th Am. ed.). A bond jide pur- 
chaser will not be affected by the notice of his vendor : Demarest r. Wyn- 
koop, 3 John. Ch. 147 ; and on the other hand a purchaser who has notice 
will, as a general rule, be protected by the want of notice on the part of 
his vendor : Curtis v. Lunn, 6 Munf. 42 ; Lindsey v. Rankin, 4 Bibb 482 
Bumpus V. Platner, 1 John. Ch. 213 ; McNitt v. Logan, Litt. Sel. Cas. 69 
Wood V. Chapin, 13 N. Y. 509 ; Webster v. Van Steenbergh, 46 Barb. 211 
Hagthorp v. Hook's Adm'r., 1 G. & J. 273. And the same rule applies to 
cases of constructive notice under the recording acts : American note to 
Le Neve v. Le Neve, 2 Lead. Cas. Eq. 184. 

' In England and some of the United States, the rule is that notice be- 
fore the execution of the conveyance, though after payment of the purchase- 
money, is sufficient. But in others, as Pennsylvania, Virginia and Iowa, 
the notice must be before payment of the purchase-money : Hill on Trus- 
tees (4th Am. ed.) 259; notes to Basset v. Nosworthy, 2 Lead. Cas. 1 ; 
Barney v. McCarty, 15 Iowa 514. In some of the states also, contrary to 
the English rule, and that prevailing in other states, payment of part of 
the purchase-money will be a protection pro tanto : Juvenal v. Jackson, 
14 Penn. St. 519 ; Frost v. Beekman, 1 John. Ch. 288 ; Flagg v. Mann, 2 
Sumn. 486 ; Paul v. Fulton, 25 Missouri 156 ; but compare Fraim v. 
Frederick, 32 Texas 294. See note to Basset v. Nosworthy, ut sup. To 
entitle a party to the status of a bond Jide purchaser, without notice, there 
21 



322 ADAMS's DOCTRINE OF EQUITY. ! 

prior equity binding the owner in respect of that property, 
he shall be assumed to have contracted for that only which 
the owner could honestly transfer, viz., his interest, sub- 
ject to the equity as it existed at the date of the notice. 
r*i noi *-^^ accordance with this principle, the pur- 
chaser of property from a trustee with notice of 
the trust, is himself a trustee for the same purposes; the 
purchaser of property which the vendor has already con- 
tracted to sell, with notice of such prior contract, is bound 
to convey to the claimant under it ; and the purchaser of 
land which the vendor has covenanted to use in a specified 
manner, having notice of that covenant, is bound by its 
terms. The exact extent to which this doctrine will be 
carried, where a covenant has been made by the owner of 
land, the burden of which does not at law run with the 
land, does not appear to be positively settled. If, how- 
ever, the covenant be one respecting the land, and not 
purely collateral, there appears to be no reason why the 
doctrine of notice should not apply, or why the assignee 
of the land, knowing that the covenant has modified his 
assignor's ownership, should not be presumed to have con- 
tracted for it, subject to that modification, (o)^ 

It will be observed, that the notice required by this 
doctrine is a notice of an equity, which if clothed with 

(o) Whatman v. Gibson, 9 Sim. 196; Schreiber v. Creed, 10 Sim. 9; 
Keppell V. Bailey, 2 M. & K. 517 ; 2 Sug. V. & P. 500. 

must be a want of notice both at the time of the purchase and at the time 
of payment: Blanchard v. Tyler, 12 Mich. 339 

^ It was accordingly so decided in Tulk v. Moxhay, 2 Phill. 774, in which 
an assignee of land with notice of a covenant not to build, was restrained, 
without any regard to the technical rules in Spencer's Case ; and the case 
has been followed frequently since. See Coles v. Sims. 5 De G., M. & G. 
I ; Wilson V. Hart, L. R. 1 Ch. Ap. 463 ; Western v. MacDermott, L. R. 2 
Ch. Ap. 72. 



OP PRIORITIES, ETC. 323 

legal completeness would be indefeasible, and not merely 
notice of a defeasible legal interest, or of an interest, 
which, if legal, would be defeasible. For the principle is, 
that an interest, which if legal, would be indefeasible, 
shall not be defeated by reason of its equitable character, 
by a party who has notice of it. If, being legal, it may 
be defeated at law, there is no equity to preserve it. 

Instances of the first class will be found in trusts and 
contracts, including the lien of a vendor of real estate • 
and in judgments against the owners of an equitable in- 
terest ; for if the trust or contract were perfected by con- 
veyance, or the legal ownership were vested in the judg- 
ment debtor, the right of the cestui que trust or vendee in 
the one case, or of the judgment creditor in the other, 
could not be subsequently defeated. The case of dower 
was until ^recently an exception to this rule. We r*-iro-, 
have already seen that by an anomalous distinc- 
tion in the law of trusts, the widow was excluded from 
dower in a trust estate, although she would have been en- 
titled to it in a legal one of the same character. The 
same distinction was continued in respect to notice ; and 
it was held, that although the mere existence of an out- 
standing term would not exclude the widow in favor of the 
husband's heir, yet it would exclude her in favor of her 
vendee, notwithstanding that the purchase was made with 
notice of her right. This anomaly, as well as that of her 
exclusion from a trust estate, has been abolished by the 
recent act. 

Instances of the second class will be found in judg- 
ments defeated under the old law by a power of appoint- 
ment in legal titles destroyed by fine ; (p) in contracts 

{p) Langley v. Fisher, 9 Bea. 90 ; Story v. Windsor, 2 Atk. 630. 



324 ADAMS'S DOCTRINE OF EQUITY. 

which the purchaser had ah initio a right to nullify ; {q) 
and in voluntary conveyances avoided by subsequent 
alienation for value ; (r) for in all these cases the legal 
right of the claimant is legally defeasible, and he has no 
independent equity to sustain it. 

There is an apparent exception to this rule in regard 
to unregistered conveyances and undocketed judgments, 
which, although mere legal titles, and invalid at law, 
have been enforced as equities on the ground of notice. 

By several acts of Parliament,^ all deeds and wills con- 
cerning estates within the North, (5) East,(i^) or West(w) 
Ridings of the county of York, or within the town and 
county of Kingston-upon-Hull, {v) or within the county of 
Middlesex, are directed to be registered. (2(')^ And it is 

{q) Lufkin v. Nunn, 11 Ves. 170 ; 3 Sug. V. & P. 441. 

(r) Pulvertoft v. Pulvertoft, 18 Ves. 84 ; Buckle v. Mitchell, Id. 100. 

(*) 8 Geo. 2, c. 6. [t] 6 Ann. c. 35. 

(m) 2 & 3 Ann. c. 4 ; 5 Ann. c. 18. {v) 6 Ann. c 35. 

{w) 7 Ann. c. 120. 

' Two acts have been recently passed in England in regard to real 
estate, which ought to be noticed here. The Stat. 25 & 26 Vict. c. 67 pro- 
vides for an examination of title by the Court of Chancery, and a declara- 
tion thereupon ; and Ch. 53 of the same statute furnishes a system of 
registration for such titles as, after official investigation, appear good and 
marketable. 

^ The rule under the recording acts, in force generally in the United 
States, is different from that under the registry acts in England, and it is 
held that the registry of a deed or mortgage, is notice of its contents, and 
of equities created thereby, or arising therefrom, to all persons claiming 
under the grantor, any title held by him at the time of conveyance : 4 
Kent's Com. 174 ; American notes to Le Neve v. Le Neve, 2 Lead. Cas. 
Eq., p. i., 178, and cases cited, among which are Cushing v. Ayer, 25 Maine 
383 ; McMechan v. Griffing, 3 Pick. 149 ; Peters v. Goodrick, 3 Conn. 146 ; 
Parkist v. Alexander, 1 J. C. 394 ; Wendell v. Wadsworth, 20 John. 663 ; 
Plume V. Bone, 1 Green 63 ; Evans r. Jones, 1 Yeates 174 ; Irrin v. Smith, 
17 Ohio 226 ; Martin v. Sale, Bail. Eq. 1 ; Shults v. Moore, 1 McLean 520; 
Hughes V. Edwards, 9 Wheat. 489 ; Hickman v. Perrin, 6 Cold. (Tenn.) 
135 5 Digman v. McCoUum, 47 Mo. 372. This does not apply, however. 



OF PRIORITIES, ETC. 325 

enacted, that all such deeds shall be adjudged fraudulent 
and void against any subsequent purchaser or mortgagee 

where the recording of an instrument is not legally requisite, or it is de- 
fectively executed or acknowledged : cases in notes to Le Neve v. Le Neve, 
ut supra : Moore v. Auditor, 3 Hen. & Munf. 232; Sumner ». Rhodes, 14 
Conn. 135 ; Walker v. Gilbert, 1 Freem. Ch. 85 ; Harper v. Reno, Id. 323 ; 
Isham V. Bennington Iron Co., 19 Verm. 230 ; Graham v. Samuel, 1 Dana 
166 ; Pitcher ». Barrows, 17 Pick. 361 ; Thomas v. Grand Gulf Bank, 

9 Sm. & M. 201 ; Green v. Drinker, 7 W. & S. 440 ; Shults v. Moore, 1 
McLean 520; Brown v. Budd, 2 Carter (Ind.) 442; Choteau v. Jones, 11 
Illinois 300 ; Work v. Harper, 24 Miss. 517 ; Pope v. Henry, 24 Verm. 
560 ; Lally v. Holland, 1 Swan 396 ; Parret v. Shaubhut, 5 Minn. 323 ; 
Racouillat v. Rene, 32 Cal. 450 ; nor where it is recorded in a different 
county from that in which the lands lie : Aster r. Wells, 4 Wheat. 466 ; 
Kerns v. Swope, 2 Watts 75 ; or, d fortiori, in another state : Hundley v. 
Mount, 8 S. & M. 387 ; Lewis v. Baird, 3 McLean 56 ; Crosby v. Huston, 
1 Texas 203. But in De Lane v. Moore, 14 How. U. S. 253 ; U. S. Bank 
V. Lee, 13 Peters 107; Crenshaw r. Anthony, M. & Y. 110; Bruce w. 
Smith, 3 H. & J. 449 ; Crosby v. Huston, 1 Texas 203, it was held that 
the registration of a settlement of personal property in the state where 
the parties reside at the time, and the property then was, is vajid as 

> against creditors and purcha.sers in another state, into which the property 
is afterwards removed : though see Hundley r. Mount, 8 Sm. & M. 387. 
The record also is not notice to those not claiming title under the 
same grantor: Stuyvesant v. Hall, 2 Barb. Ch. 151 ; Lightner v. Mooney, 

10 Watts 412 ; Woods v. Farmere, 7 Id. 282 ; Bates v. Norcross, 14 Pick. 
224 ; Crockett v. Maguire, 10 Mo. 34 ; Tilton r. Hunter, 24 Maine 29 ; 
Leiby v. Wolfe, 10 Ohio 80 ; Hoy v. Bramhall, 4 Green (N. J.) 563 ; Igle- 
hart V. Crane, 42 111. 261 ; Calder v. Chapman, 52 Penn. St. 359. An un- 
recorded deed, is in general, good between the parties: 4 Kent 456, cases 
cited. And where a subsequent purchaser has knowledge of the exist- 
ence of such a deed, it is equivalent, as to him, to registry, and is treated 
as such, both at law and in equity: Jackson v. Leek, 19 Wend. 339 5 
Jackson r. Sharp, 9 John. 163 ; Porter v. Cole, 4 Maine 20; Farnsworth 
r. Childs, 4 Mass. 637; Martin v. Sale, Bail. Eq. 1; Corry r. Caxton, 4 
Binn. 140; Speer ». Evans, 47 Penn. St. 141; Pike v. Armstead, 1 Dev. 
Eq. 110; Vanmeter v. McFaddin, 8 B. Monr. 442; Ohio Ins. Co. r. Led- 
yard, 8 Ala. 866 ; McRaven v. Maguire, 9 Sra. & M. 34 ; McConnell r. Read, 
4 Scam. 117 ; Dearing v. Lightfoot, 19 Ala. 28 ; McCuUough v. Wilson, 21 
Penn. St. 4.36; Cent«r v. P. & M. Bank, 22 Ala. 743; Gibbes ». Cobb, 7 
Rich. Eq. 54 ; notes to Le Neve v. Le Neve, ut supra ; Conover v. Von Ma- 
t«r, 3 Green, (N. J.) 481 ; Nice's Appeal, 54 Penn. St. 200. Though a 



326 ADAMS's DOCTRINE OF EQUITY. 

r*i cjii ^^^ valuable *consideration, unless a memorial 
thereof be registered, in the manner thereby pre- 

mortgage is falsely recited in the records, it is notice of the actual mort- 
gage : Smallwood v. Lewin, 2 McCarter (N. J,) 60. Recital of one un- 
registered in a registered one is sufficient notice : Hamilton v. Nutt, 34 
Conn. 501. But see in Ohio as to mortgages, Mayham v. Coombs, 14 
Ohio 428. In regard to judgment creditors, and purchasers at sales 
under judgments, actual notice is, without doubt, too late after judgment 
obtained, and, it would seem, after the status of creditor has been ac- 
quired : Davidson v. Cowen, 1 Eq. 470 ; Uhler v. Hutchinson, 23 Penn. St. 
110, overruling Solms v. McCoUoch, 5 Id. 473 ; American note to Bassett 
V. Nosworthy, 2 Lead. Cas. in Eq. 111. See, also, Benham v. Keane, 1 
Johns. & H. 685 ; Barker v. Bell, 37 Ala. 354. Under the statute 
in Iowa, however, the rule is different ; see Seevers v. Delashmutt, 
11 Iowa 174; Parker v. Pierce, 16 Id. 227 ; Hays v. Thode, 18 Iowa 51. 
But the authorities are at variance with regard to the character of the 
notice which will postpone a recorded to a prior unrecorded deed. The 
cases in England, since Iline v. Dodd, 2 Atkyns 275, place the relief given 
against the subsequent purchaser, which is there only in equity, on the 
ground of fraud (see Le Neve v. Le Meve, ut supra ; Fleming v. Burgin, 
2 Ired. Eq. 584 ; Ohio Ins. Co. v. Ross, 2 Md. Ch. Dec. 35) ; on which 
alone, it is supposed, the Act of Parliament could be broken in upon ; 
and therefore, require clear proof of actual notice, which is considered 
equivalent to fraud : Chadwick v. Turner, L. R. 1 Ch. 310. In some of 
the states this doctrine has been adopted, and constructive notice is held 
to be insufficient : Norcross v. Widgery, 2 Mass. 509 ; Bush v. Golden, 17 
Conn. 594; Harris v. Arnold, 1 Rhode Island 125 ; Frothingham v. Stacker, 
11 Mo. 77 ; Martin v. Sale, Bail. Eq. 1 ; Fleming v. Burgin, 2 Ired. Eq. 
584 ; Ingram v. Phillips, 5 Strobh. 200 ; see Burt v. Cassedy, 12 Ala. 734 ; 
McCaskle v. Amarine, 12 Id. 17 ; Hopping v. Burnham, 2 Green (Iowa) 
39. Thus, possession of the prior grantee, except, perhaps, where dis- 
tinctly brought home to the knowledge of the purchasers, is held to be in- 
sufficient : Harris v. Arnold ; Frothingham v. Stacker. In oiher states, 
there are statutory provisions to the same effect : Spofford v. Weston, 29 
Maine 140 ; Butler v. Stevens, 26 Id. 489 ; Curtis v. Mund, 3 Mefc. 405 5 
Hennessey v. Andrews, 6 Cush. 170. In Pennsylvania and New York, 
the decisions are not consistent. In Scott v. Gallager, 14 S. & R. 333, and 
Boggs V. Varner, 6 W. & S. 469, the language of the court is in accord- 
ance with the doctrine just stated. But there is no doubt that in the 
former state, open and notorious possession is sufficient notice of an un" 
recorded deed : Krider v. Lafferty, 1 Whart. 303 ; Randall v. Silverthorn, 
4 Penn. St. 173 ; Patton v. The Borough, 40 Id. 206. So in New York, 



OF PRIORITIES, ETC. 327 

scribed, before the registering of the memorial of the deed 
under which such subsequent purchaser or mortgagee shall 
claim. And that all devises by will shall be adjudged 
fraudulent and void against subsequent purchasers or 
mortgagees, unless a memorial of such will be registered 
within the space of six months after the death of the tes- 
tator, dying within Great Britain ; or within the space of 
three years after his death, dying upon the sea or in parts 
beyond the seas. And it is by the same acts further pro- 
vided, that no statute, judgment, or recognisance (other 
than such as shall be entered into the name and upon the 
proper account of the King, his heirs, and successors), 
shall bind any such estates as aforesaid, but only from the 
time that a memorial thereof shall be duly entered, (a;) 
The question which has arisen under these acts is. 



(«) 3 Sug. V. & P. c. xxi., 8. 5. 



A. 



Tuttle V. Jackson, 6 Wend. 213, has established, contrary to Day v. Bun- 
ham, 2 J. C, 182, and other cases, that constructive notice is enough to 
postpone a subsequent purchaser. See Troup r. Hurlbut, 10 Barb. S. C. 
354. And in Grimstone v. Carter, 3 Paige 421, it was held in general, 
that equities and agreements to convey, were not within the recording 
acts. In Maryland, in the case of Price v. McDonald, 1 Md. 414, a simi- 
lar doctrine was held by the Court of Appeals ; though in Ohio Ins. Co. 
V. Ross, 2 Md. Ch. Dec. 35, and Gill v. McAttee, Id. 268, the English rule 
was supported and followed by Chancellor Johnson. That possession is 
notice, has been also held in Webster v. Maddox, 6 Maine 256 ; Kent v. 
Plummer, 7 Id. 464 (before the statute referred to above) ; Boggs v. An- 
derson, 50 Id. 161 ; Buck v. Halloway, 2 J, J. Marsh. 163 ; Hopkins v. 
Garrard, 7 B. Monr. 312; Colby v. Kenniston, 4 N. H. 262; Williams v. 
Brown, 14 111. 200; Morrison v. Kelly, 22 Id. 610; Wyatt v. Elam, 19 
Geo. 335 ; Vaughan v. Tracy, 22 Mo. 4 ; see, also. Bell v. Twilight, 2 
Foster (N. H.) 500; Griswold v. Smith, 10 Verm. 452; and in Landes v. 
Brant, 10 How. U. S. 348 ; where, indeed, the point was considered to be 
unquestioned. This, however, is a mistake. This subject is treated of 
with great ability and acuteness in notes to Le Neve v. Le Neve, ut supra, 
where the cases will be found collected. See, also, Hart v. The Farmers' 
Bank, 33 Verm. 252. 



328 ADAMS's DOCTRINE OF EQUITY. 

whether a person buying an estate with notice of a prior 
encumbrance, not registered, shall be bound in equity by 
such encumbrance, although he has obtained a priority at 
law by registration of his deed.^ And it has been held 
that he shall; but that the notice must be clear and 
undoubted, amounting in effect to evidence, that knowing 
the situation of the prior encumbrances, he registered 
in order to defraud them. A mere lis pendens is not such 
notice. 

The doctrine as to notice of unregistered deeds has 
been a subject of regret, as breaking down the operation 
of the acts ; and it is perhaps difficult to reconcile it alto- 
gether to principle. For if it be assumed that the un- 
registered conveyance evidences a mere legal title, invali- 
dated by a mere legal flaw, it is difficult to see how an 
equity can arise, because an act of Parliament has made 
it invalid ; if it evidences an equitable title by contract, 
which the want of registration has deprived of legal com- 
pleteness, it is difficult to see why the same degree of 
r*1 ^^1 *^^^i^^> which would bind in other cases, should 
not bind in this.(y) 

The question with respect to undocketed judgments 
has arisen as follows : It was directed by the old law, 
that a particular of all judgments entered in the Courts 
should be made and put in an alphabetical docket, and 
that no undocketed judgment should affect any lands or 
tenements as against purchasers or mortgagees, (sr) The 
first decision in favor of the undocketed judgments was, 
that if the purchaser had notice of it, and did not pay 

(y) Jolland v. Stainbridge, 3 Ves. 478 ; Wyatt ». Barwell, 19 Id. 435 ; 
3 Sug. V. & P. 372-3 ; Tyrrell's Suggestions 230. 
(z) 4 & 5 Wm. & Mary, c. 20 ; 7 & 8 Wm. 3, c. 36. 



Butler ». Viele, 44 Barb. (N. Y.) 166. 



OF PRIORITIES, ETC. 329 

the value of the estate, it should be presumed that he 
agreed to pay it off, and he should be compelled in equity 
to do so. The question afterwards came before Lord El- 
don, on a bill for specific performance, where the pur- 
chaser had notice of undocketed judgments. Lord El- 
don refused to force the title on him, stating at the same 
time an opinion, grounded on the decisions under the 
Kegistry Acts, that he would be bound by notice. He 
expressed, however, some doubt whether the doctrine 
could be perfectly reconciled to principle ; and it is per- 
haps attended with the more difficulty, because the un- 
docketed judgment is only an invalid title by an act of 
law, and is not, like an unregistered conveyance, evidence 
of a title by contract in equity, (a) The doctrine itself, 
however, is now at an end. The system of dockets has 
been abolished, a new method of reoj^tration substi- 
tuted ;(^) and it is declared that notice shall be imma- 
terial, (c) 

A remarkable illustration of the doctrines of notice is 
presented by the rule which requires the purchaser under 
a trust for sale, to see to the application of his purchase- 
money.^ This rule assumes that the trustee is expressly 
or impliedly authorized to sell, and that he does not, so 
far as *the purchaser is aware, intend to misapply p^-. r /.-i 
the price. For if either of these ingredients be 
wanting, the purchaser, having notice of a breach of trust 
committed or intended, would be obviously responsible 

(a) Davis v. Strathmore, 16 Ves. 419 ; 2 Sug. V. & P. 394. 

(6) 1 & 2 Vict. c. 110. (c) 3 & 4 Vict. c. 82. 

^ By statute 23 & 24 Vict. (1860) c. 145, § 29, it is provided that the re- 
ceipts in writing of any trustee for any money payable to him in the 
exercise of his trust shall be a sufficient discharge, and shall exonerate the 
purchaser from seeing to the application of the purchase-money. 



330 ADAMS's DOCTRINE OF EQUITY. 

for aiding it.{d) The rule, however, goes beyond this, 
and requires the purchaser to ascertain that his purchase- 
money is in fact rightly applied.^ If the trust be to pay 
it over to other persons, he must see that such payments 
are made ; if it be to invest the amount in the names of 
the trustees, he must see that the investment is duly 
made, though he need not interfere with its subsequent 
application, [e) In order to obviate this inconvenience, it 
is usual to declare by an express clause, that the trustee's 
receipt shall be a discharge ; and a corresponding autho- 

(d) Watkins v. Cheek, 2 S. & S. 199; Eland v. Eland, 4 M. & C. 420, 427. 

(e) 3 Sug. V. & P. 158. 

^ Where there is a general charge or power to sell for debts, or for debts 
and legacies, the purchaser is not bound to look to the application of the 
purchase-money : Williams v. Otey. 8 Humph. 568 ; Garnett v. Macon, 6 
Call 308 ; Bruch v. Lantz, 2 Rawle 392 ; Cadbury v. Duval, 10 Penn. St. 
267 ; Dalzell v. Crawford, 1 Pars. Eq. 57 ; Ilauser v. Shore, 5 Ired. Eq. 
357 ; Gardner v. Gardner, 3 Mason 178 ; Andrews v. Sparhawk, 13 Pick. 
393 ; Nicholls v. Peak, 1 Beas. 69. So, as to legacies, where there is a 
trust for reinvestment, or the application cannot be made immediately : 
Wormley v. Wormley, 8 Wheat. 421 ; Coonrod v. Coonrod, 6 Ilamm, 114 ; 
Hauser v. Shore, 5 Ired. Eq. 357. But where the trust is for the payment 
of scheduled or specified debts, the cases generally hold that the purchaser 
is bound to see to the application of the purchase-money : Gardner v. Gard- 
ner, 3 Mason 178 / Cadbury v. Duval, 10 Penn. St. 267 ; Dalzell v. Craw- 
ford, 1 Pars. Eq. 57 ; Wormley v. Wormley, 8 Wheat. 422 ; Duffy v. Calvert, 
6 Gill 487 ; though see the remarks of Mr. Wallace's note to Elliott v. Mer- 
ryman, 1 Lead. Cas. Eq. 45, as to devises for payment of debts. It has also 
been doubted by Mr. Wallace, ut sup., whether, under a devise for the pay- 
ment of legacies simply, the rule would be applied in this country, inas- 
much as the debts of a decedent are always an implied charge on land here, 
and therefore it is supposed such a charge would be equivalent to a devise 
for the payment of both debts and legacies. But the analogy between the 
two cases can only hold, if, on a sale for the payment of legacies alone, 
the lien of debts would be discharged, which is by no means clear. In 
Dufiy V. Calvert, 6 Gill 487, and Downman v. Rust, 6 Rand, 587, accord- 
ingly, a purchaser was held bound to see to the application of the purchase- 
money under such circumstances. See on this subject Hill on Trustees, 
pp. 342-363. 



OF PRIORITIES, ETC. 331 

rity will arise by implication, if the nature of the trust 
be inconsistent with the contrary view. If, for instance, 
the sale be directed at a time when the distribution could 
not possibly be made, it will be assumed that the trustees 
were meant to give a discharge, for the money cannot be 
paid to any other person. (/) The same assumption is 
made on a trust for general payment of debts, or for pay- 
ment of debts and legacies ; for it is impossible that the 
purchaser should ascertain the creditors ; and if he were 
held liable to see the legacies paid, he would be neces- 
sarily involved in the account of debts. If the original 
trust be for payment of debts and legacies, the power to 
give a discharge is not affected, although the purchaser 
may know that the debts have been paid, and that the 
legacies alone remain as a charge. (^) Where leasehold 
estates are purchased from an executor, tj^pir price is ne- 
cessarily applicable in a course of administration, which 
is tantamount to a trust for general payment of debts. 
And it is, therefore, settled that such a purchaser is not 
bound to see to the application of the purchase-money, 
when he *purchases lond fide, and without notice r*i ^7-1 
that there are no debts. (^)^ 

{/) Balfour r. Welland, 16 Ves. 151 ; Sowarsby ». Lacy, 4 Mad. 142. 
[g) Forbes v. Peacock, 1 Ph. 717 ; Sug. V. & P. c. xvii., s. 1. 
\h) 2 Sug. V. & P. c. xvii., 8. 2. 

* It has been recently held, however, that it is immaterial on a trust for 
sale for the payment of debts and legacies, that the purchaser has notice 
there are no debts, or even that there were none at the testator's death. 
The principle in such cases was said by the Lord Chancellor to be, that 
the testator in creating such a trust is to be supposed to have intended to 
give his trustees full power of receiving and applying the money ; and not 
to rest upon the ground of the difficulty a purchaser would have in deter- 
mining whether there were any debts or not : Stroughill r. Anstey, 1 Po 
G., M. & Gord. 635. See article in 17 Jurist, part ii., 251 ; Hill ua 
on Trustees 553, note, 4th Am. ed. 



332 ADAMS's DOCTRINE OF EQUITY. 

The only remaining question as to notice is what degree 
of information will amount to notice.^ It is not essential 
that the notice be given to the party himself; but notice 
to his counsel, solicitor, or agent, is sufficient, whether 
given in the same or in another transaction, provided 
there be adequate reason to conclude that the facts con- 
tinued in remembrance, (i) Where, however, a solicitor had 
obtained for himself an estate from a client, by fi;aud, 
and afterwards on his selling it acted as the purchaser's 
solicitor, it was considered by Lord Brougham, in opposi- 
tion to Sir John Leach, that as the solicitor had in fact 
defrauded both parties, the purchaser could not, from the 
mere circumstance of his having employed the same so- 
licitor, be held to have notice of the fraud, any more than 
the party on whom it was first committed. (^)^ 

The ordinary instances of notice by actual information 
do not require any special remark. But it should be ob- 
served, that under this head is included notice by lis pen- 
dens or an interlocutory decree.^ For it is presumed 

(t) Fuller V. Bennett, 2 Hare 394. 
(k) Kennedy v. Green, 3 M. & K. 699. 

' See on the aubject of notice, notes to Le Neve v. Le Neve, 2 Lead. 
Cas. Eq. 23. 

* Knowledge acquired by an agent, in the course of his agency, is notice 
to the principal : Hough v. Richardson, 3 Story 660 ; Bowman v. Wathen, 
1 How. 195 ; Astor c. Wells, 4 Wheat. 466 ; Westervelt ». Haff, 2 Sandf. 
Ch. 98 ; Watson v. Wells, 5 Conn. 468 ; Bracken v. Miller, 4 W. & S. 108. 
See Hood v. Fahnestock, 8 Watts 489. But it must generally be acquired 
.in the same transaction: Bracken w. Millar, 4 W. & S. HI 5 Henry c. 
Morgan, 2 Binn. 497 ; Martin v. Jackson, 27 Penn. St. 404. See Smith's 
Appeal, 47 Penn. St. 128 ; Espin v. Pemberton, 3 De G. & J. 547. Where 
the agent acts for both parties, it is notice to the purchaser: Sergeant v. 
Ingersoll, 15 Penn. St 343 ; 7 Id. 340. 

» Murray ». Ballou, 1 John. Ch. 566 ; Murray v. Lylburn, 2 Id. 441 ; 
Zeiter v. Bowman, 6 Barb. S. C. 133 ; Owongs v. Myers, 3 Bibb 279 ; 
Boiling V. Carter, 9 Ala. 921 ; Green v. White, 7 Blackf. 242 ; Tongue v. 



OF PRIORITIES, ETC. , 333 , 

that legal proceedings during their continuance, are pub- 
lically known throughout the realm." But no lis pendens, 

Morton, 6 Harr & John. 21 "Walker v. Batz, 1 Yeates 574 ; Diamond v. 
Lawrence Co., 37 Penn. St. 353. It has been held, however, in one or two 
cases, that the doctrine of lU pendens was inconsistent with the policy of 
the recording or registration acts in this country : Newman v. Chapman, 
2 Rand. 93 ; City Council r. Page, Spear's Eq. 159. In King v. Bill, 28 
Conn. 593, it was doubted whether the doctrine of notice by lis pendens- 
obtains in Connecticut. The principle of Us pendens is, that the specific 
property must be so pointed out by the proceedings as to warn the whole 
world that they meddle with it at their peril : Lewis v. Mew, 1 Strobhart's 
Eq. 180. See Green v. Slayter, 4 John. Ch. 38 ; but the doctrine does not 
apply in a case where the Court has no jurisdiction of the thing in contro- 
versy : Carrington v. Brents, 1 McLean 167 ; and it stpplies only to rights 
or interests acquired from a party after the institution of a suit, and not to 
the case of a right previously contingent or conditional becoming perfect : 
Hopkins v. McLaren, 4 Cow. 667 ; Clarkson v. Morgan, 6 B. Monr. 441. 
Lis pendens is notice only in relation to the property which is the imme- 
diate subject of the suit: Edmonds v. Crenshaw, 1 McC. Ch^252; and the 
property affected must be definitely described : Miller v. Shwry, 2 Wallace 
S. C. 250 ; and can only affect a purchaser from the party to the suit of 
the subject of controversy : French v. The Loyal Company, 5 Leigh 627. 
Notice to a purchaser, arising from a bill filed, is notice of what the bill 
contains, and nothing more : GrifiBth v. GriflBth, 1 Hoff. Ch. 153 ; and a suit 
not prosecuted to decree or judgment, is not constructive notice to a person 
who is not a pendente lite purchaser : Alexander v. Pendleton, 8 Cranch 
462 ; but the pendency of a suit duly prosecuted, is notice to a purchaser 
of the subject of a suit, so as to bind his interest ; and a pendency of a 
suit commenced from the service of the subpoena, after the bill is filed : 
Murray v. Ballou, 1 John. Ch. 566 ; Goodwin v, McGehee, 15 Ala. 232; 
Lytle V. Pope, 11 B. Monr. 318. Publication as to a non-resident defendant 
is equivalent to service of subpoena : Chaudron v. Magee, 8 Ala. 570. 
Notice, however, by lis pendens, cannot continue after a final decree or 
judgment: Blake v. Heyward, 1 Bailey's Eq. 208; Turner v. Crebill, 1 
Ohio 372 ; Winborn v. Gorrell, 3 Ired. Eq. 117. See on this subject Hill 
on Trustees, 4th Am. ed., 794 ; notes to Le Neve v. Le Neve, 2 Lead. Cas. 
Eq. 23. The doctrine of lis pendens has been recently considered in the 
Court of Appeal in England, and finally decided not to stand on the ground 
of notice express or implied, but to follow from the general rule that pend- 
ing litigation, neither party can be permitted to alienate the contested 
property, so as to affect the rights of the other. The doctrine in question 
was therefore held, not to apply as between co-defendants : Bellamy v. 
Sabine, 3 Jur. N. S. 943. 



334 ADAMS'S DOCTRINE OF EQUITY. 

of which a purchaser has not express notice, will now 
bind him, unless it be duly registered. (/) On the other 
hand, a final decree or judgment is not notice ;(m) nor a 
fiat in bankruptcy^ (w) nor the Court Rolls of a manor ;(o) 
nor the registration of a deed; nor the docketing or the 
registration of a judgment. But if it appear that a search 
was actually made, it will be presumed that the entry 
was found, and the purchaser will be affected with notice 
r*1 ^9C\ ^^ ^^^ contents. *In the absence of any actual 
information of the equity, the party may also be 
affected with notice by information of any fact or instru- 
ment relating to the subject-matter of his contract, which 
if properly inquired into would have led to its ascertain- 
-ment.^ If, for instance, he purchases land which he 
knows to be in the occupation of another than the 
vendor, he is bound by all the equities of the party in 
occupation. 

If he knows that the title deeds are in another man's 
possession, he may be held to have notice of their pos- 
sessor's claim on the estate. If he knows of any instru- 
ment, forming directly or presumptively a link in the title 
he will be presumed to have examined it, and therefore to 
have notice of all other instruments or facts to which an 
examination of the first could have led him. But he can- 
not be presumed to have examined instruments which are 
not directly or presumptively connected with the title, 
merely because he knows that they exist, and that they 

(i) 3 Sug. V. & P. 458 5 Shall cross o. Dixon, 5 Jarm. on Conveyancing 
493; 2 Vict. c. 11, 8. 7. 
(w) 2 Sug. V. & P. 461. 
(n) Hithcox v. Sedgwick, 3 V. & P. 467. 
(o) 3 V. & P. 478. 

^ See notes to Le Neve, 2 Lead. Cas. Eq. ut sup. 



OF PRIORITIES, ETC. 335 

may by possibility affect it, for that may be predicated of 
almost any instrument; e. g., if he be informed that the 
vendor made a settlement on his marriage, but is in- 
formed at the same time that it does not relate to the 
property, he is not bound by notice of its contents. The 
mere want of caution is not notice. If indeed there be 
a wilful abstinence from inquiry, or any other act of 
gross negligence, it may be treated by the Court as evi- 
dence of fraud; but, though evidence of fraud, it is not 
the same thing as fraud. The party may have acted 
hondfide, and if he has done so thore is no equity against 
him. The neglect, therefore, of a purchaser to inquire for 
the title deeds is not equivalent to notice that they are 
deposited with the mortgagee. For though he may have 
acted incautiously in. taking a coveyance without them, 
yet the other party has been equally imprudent^ taking 
the deeds without a conveyance, and each, in the absence 
of fraud, is at liberty to make the best use he can of his 
imperfect title. In conformity with the same principle, 
it seems that the mere notice of a fact, which may or may 
not, according to circumstances, be held *in a p^^-. rq-i 
Court of equity to amount to fraud, will not affect 
a purchaser for value denying actual notice of the fraud. 
But where a lease was granted to a trustee and agent at 
a rent palpably below the value, it was held that the fact 
of its being granted at such undervalue, coupled with a 
recital that it was for faithful services, was a sufficient 
notice to the purchaser of such lease to put him on his 
guard, {p) 

We have now considered the three rules of superior 

{p) Jones V. Smith, 1 Hare 43; 1 Ph. 244; West v. Reid, Id. 249; 
Borell V. Dann, Id. 440 ; Kerr v. Lord Dungannon, 1 Conn. & L. 335 ; 3 
Sug. V. & P. 468-480. 



336 ADAMS's DOCTRINE OF EQUITY. 

equity originating in contracts in rem, wilful misrepre- 
sentation, and purchasers without notice. If no superior 
equity exists, the common course of law is not interfered 
with. The equities are equal, and the law, or the analogy 
of law, will prevail. 

If there be a legal right in either party, the Court of 
Chancery remains neutral; as, for example, if the pur- 
chaser of property without notice of a prior equity has 
procured a conveyance of the legal estate, either to him- 
self or to an express trustee for him, this legal estate will 
secure him at law, and his priority therefore will be abso- 
lute over all claimants.^ A similar result will follow if 
he can procure the assignment of an outstanding term, or 
of an estate by elegit. In the one case he has priority 
during the continuance of the term; in the other until 
the elegit is determined at law, i. e., until the judgment 
has been satisfied at the extended value, which is always 
much below the real. It has been enacted by the late 
statute that the duration of an elegit shall in future be 
ascertained at law by a computation at the real, and not 
at the extended value ; but this enactment, as well as the 
other statutory changes in respect to judgment, is subject 
to an exception in favor of purchasers without notice. (§') 

The recent enactment as to the cesser of outstanding 
terms, when they become attendant on the inheritance, 

{q) 1 & 2 Vict. c. 110 ; 2 & 3 Vict. 11, s. 5. 

^ Sete Story, J,, in Flagg v. Mann, 2 Sumn. 557 ; Gibler v. Trimble, 14 
Ohio 323. In Sergeant v. Ingersoll, 7 Penn. St. 340 ; 15 Id. 343 ; however, 
where the purchaser of an equitable title got the legal title from the 
trustee at the same time, he was held, nevertheless, bound by a covenant 
of the cestui que trust, of which he had no notice, the Court being of 
opinion under the circumstances that the separation of the legal and 
equitable titles was so suspicious a circumstance that it ought to have put 
him on inquiry. 



OF PRIORITIES, ETC. 387 

has *been already explained, (r) If a purchaser r^if^A-i 
without notice of a prior equity, fails in obtaining 
the legal estate, he may still protect himself to some ex- 
tent by getting possession of the title deeds, whether of 
the fee or of an outstanding term ; for the possession of 
the deeds, though not equivalent to ownership, is so far 
available at law, that if he can otherwise get possession 
of the estate, it may serve him as a shield to protect his 
holding, or, at all events, may so far inconvenience his 
opponent as to compel the satisfaction of his claim, {s) If 
he cannot obtain either a conveyance or the deeds, he 
may take his chance of defects in his opponent's evidence, 
and will not be compelled to answer a bill of discovery, (i^) 

If there be no legal right in either party, the Court of 
Chancery cannot be neutral ; for it is the only tribunal 
competent to take cognisance of the dispute. In this case, 
therefore, it acts on the analogy of law, and gives priority 
to that title which most nearly approximates to a legal 
one; viz., to an executed and perfect title in equity, 
rather than to one which is executory and imperfect.^ 

The methods by which a title may be perfected in 
equity differ according to the subject-matter of convey- 
ance. Where an equity of redemption, whether in real 
or personal estate, is the subject, the conveyance will be 
perfected by the joinder of the mortgagee, and by his 

(r) 8 &9 Vict. c. 112, supra, Attendant Terms. 

(s) Head v. Egerton, 3 P. Wms. 280, cited 2 Ves. & B. 83 ; Wallwyn v. 
Lee, 9 Ves. 24 ; Bernard v. Drought, 1 Moll. 38. 
, [t) 3 Sfig. V. & P. c. xxiv. 

^ See Bellas v. McCarty, 10 Watts 13. Where a purchaser, the day after 
the completion of his purchase, deposited the title deeds by way of equitable 
mortgage, the mortgagee was held to have a better equity than the vendor 
as to his lien for unpaid purchase-money : Rice v. Rice, 23 L. J. Ch. 289 ; 
2 Drew. 77. 
22 



338 ADAMS's DOCTRINE OF EQUITY. 

declaration that the purchaser shall be entitled to re- 
deem, (m). Where a trust estate in realty is the subject, 
the conveyance will be perfected if the trustee acknow- 
ledge a trust for the purchaser, either by executing a 
declaration to that effect, or by joining in the conveyance 
of his cestui que trust, though without purporting to pass 
n;j.-j />1 -| his own estate, (v) Where a trust *estate in per- 
sonalty or a cJiose in action is the subject, the as- 
signment is perfected by notice to the trustee or debtor, 
which operates as a constructive transfer of possession, (w)^ 
If, in any of these cases, the party acquiring an equitable 
interest neglects to perfect it in the manner pointed out, 
he incurs the risk of some subsequent purchaser without 
notice being more diligent, and thus acquiring a priority 
over him. 

It has been contended, that on the conveyance of a 
trust estate in realty, notice of such conveyance may be 
given to the trustee, and that the title will be thereby 
perfected, so as to exclude a subsequent purchaser from 
obtaining priority. The probability is, that a notice so 
given would practically prevent a priority being gained, 
because few persons would purchase without inquiring of 
the trustee, and few trustees would convey the legal 
estate after such a notice had come to their hands. But 

(m) 3 Sug. V. & P. 422. 

(r) Maundrell v. Maundrell, 10 Ves. 246, 270 ; Wilmot v. Pike, 5 Hare 
14,22, . 

(w) Dearie v. Hall, 3 Russ. 1 ; Foster v. Cockerell, 3 CI. &F. 456 ; Tim- 
son V. Ramsbottom, 2 K. 35 ; Meux v. Bell, 1 Hare 73 ; Etty v. Bridges, 2 
N. C. C. 486 ; Holt V. Dewell, 4 Hare 446 ; Gardners. Lachlan, 4 M. & C, 
129; Ex parte Arkwright, 3 M., D. «fe D. 129, 141 ; [Consolidated Co. v. 
Riley, 1 <5iff. 371 ; Barr's Trusts, 4 K. & J. 219 ; Scott v. Hastings, Id. 
633.] 

^ Notice to the debtor is not generally considered necessary in the United 
States to perfect the assignment of a chose in action. See ante, 53, note- 



OF PRIORITIES, ETC. 339 

assuming that the purchase were made without inquiry, 
and that the trustees were afterwards induced to convey 
the estate, the notice seems immaterial ; for it is merely 
a constructive taking possession of the estate, and there- 
fore can have no greater effect in equity than possession 
without conveyance would have had at law.(^) 

It has been already stated, that in order to avoid the 
postponement of the latter equity, freedom from notice 
is indispensable. The notice, however, here referred to, 
is a notice existing at the acquirement of the equity, not 
a notice at the completion of the right. The latter pur- 
chaser or encumbrancer, on payment of his money, be- 
comes an honest claimant in equity, and is entitled, if he 
can, to protect his claim. But he is not bound to look for 
protection *until he has ascertained that danger p^-, ^o-i 
exists ; and his right to obtain it will continue, 
notwithstanding the institution of a suit to settle the 
priorities of the conflicting claimants. A decree, however, 
to settle priorities, is a bar to any protection being after* 
wards gained; for it is in effect a judgment for all the claim- 
ants, according to the order in which they then stand, (y) 

If there be no legal right, or, in respect of equitable 
subject-matter, no perfect equitable right in any of the 
claimants, as, for example, if the estate be still o